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REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NATIONSBANK CORPORATION
(Exact name of registrant as specified in its charter)
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NORTH CAROLINA
(State or other jurisdiction of incorporation or 56-0906609
organization) (I.R.S. Employer Identification No.)
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NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(704) 386-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
PAUL J. POLKING
GENERAL COUNSEL
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(704) 386-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
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BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
SMITH HELMS MULLISS & MOORE, L.L.P. STROOCK & STROOCK & LAVAN
227 NORTH TRYON STREET SEVEN HANOVER SQUARE
CHARLOTTE, NORTH CAROLINA 28202 NEW YORK, NEW YORK 10004
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend 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, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box:[X]
CALCULATION OF REGISTRATION FEE
[CAPTION]
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (1)(2)
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Debt Securities (3) (3)
Preferred Stock
Depositary Shares (3) (3)
Common Stock (3)(4) (3)
Total $3,000,000,000 100% $3,000,000,000
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TITLE OF EACH
CLASS OF SECURITIES AMOUNT OF
TO BE REGISTERED REGISTRATION FEE
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Debt Securities N/A
Preferred Stock
Depositary Shares N/A
Common Stock N/A
Total $1,034,483
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(1) In no event will the aggregate initial offering price of the Debt
Securities, Preferred Stock, Depositary Shares and Common Stock issued under
this registration statement exceed $3,000,000,000, or the U.S. dollar
equivalent thereof in one or more foreign currencies or currency units. If
any Debt Securities are issued at an original issue discount, then
additional Debt Securities may be issued so long as the aggregate original
principal amount of all such Debt Securities, together with the original
principal amount of all other securities registered and offered hereunder,
does not exceed such amount.
(2) Estimated solely for purposes of computing the registration fee. The
proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(3) In addition to any Debt Securities, Preferred Stock, Depositary Shares or
Common Stock that may be issued directly under this registration statement,
there are being registered hereunder an indeterminate amount of Debt
Securities, and an indeterminate number of shares of Preferred Stock,
Depositary Shares or Common Stock, as may be issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares, as the case may be. No
separate consideration will be received for any Debt Securities, Preferred
Stock, Depositary Shares or Common Stock so issued upon such conversion.
(4) The aggregate amount of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) of the Securities Act of 1933, as
amended.
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectus: one to be used
in connection with the offering and sale of Debt Securities, including any
Preferred Stock, Depositary Shares and Common Stock into which the Debt
Securities may be convertible, and one to be used in connection with the
offering and sale of Preferred Stock, Depositary Shares and Common Stock,
including any such shares into which the Preferred Stock or Depositary Shares
may be convertible. Each offering made under this Registration Statement will be
made pursuant to one of these Prospectuses, with the specific terms of the
securities offered thereby being set forth in an accompanying Prospectus
Supplement.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 1, 1995
[DEBT]
PROSPECTUS
NationsBank(Register mark)
Debt Securities
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time its unsecured debt securities, which may be either senior (the
"Senior Debt Securities") or subordinated (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities").
NationsBank may sell up to $3,000,000,000 in aggregate initial offering price of
Debt Securities (or the U.S. dollar equivalent thereof if any of the Debt
Securities are denominated in a foreign currency or currency unit), which may be
offered, separately or together, in one or more series, in amounts, at prices
and on terms to be determined at the time of sale and set forth in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). Pursuant
to the terms of the Registration Statement of which this Prospectus constitutes
a part, NationsBank may also offer and sell shares of its preferred stock (the
"Preferred Stock"), which may be represented by depositary shares (the
"Depositary Shares"), and shares of its common stock (the "Common Stock"). Any
such Preferred Stock, Depositary Shares or Common Stock will be offered and
issued pursuant to the terms of a separate Prospectus contained in such
Registration Statement. The aggregate amount of Debt Securities that may be
offered and sold pursuant hereto is subject to reduction as the result of the
sale of any Preferred Stock, Depositary Shares or Common Stock pursuant to such
separate Prospectus.
The Senior Debt Securities will rank equally with all other unsubordinated
and unsecured indebtedness of the Corporation. The Subordinated Debt Securities
will be subordinate in right of payment to all existing and future Senior
Indebtedness (as defined herein) of the Corporation.
The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit (such as the European Currency Unit), and the
principal of (and premium, if any, on) or interest on the Debt Securities may be
payable in U.S. dollars or such foreign currency or currency unit. The specific
terms of each series of Debt Securities offered pursuant to this Prospectus,
including the specific designation, aggregate principal amount, currency or
currency unit in which the principal and any premium or interest may be payable,
authorized denominations, maturity, any premium, any interest rate (which may be
fixed or variable), any interest payment dates, any optional or mandatory
redemption terms, any sinking fund provisions, any subordination terms, any
terms for conversion, the form of such series, any applicable United States
Federal tax considerations, any securities exchange on which such Debt
Securities may be listed, and any other terms of such series of Debt Securities
will be set forth in the Prospectus Supplement relating to such series.
The Debt Securities may be sold (i) through underwriting syndicates
represented by managing underwriters, or by underwriters without a syndicate,
with such underwriters to be designated at the time of sale; (ii) through agents
designated from time to time; or (iii) directly by the Corporation. The names of
any underwriters or agents of NationsBank involved in the sale of the Debt
Securities, the public offering price or purchase price and any applicable
commissions or discounts will be set forth in the applicable Prospectus
Supplement or a pricing supplement thereto. The net proceeds to the Corporation
from such sale also will be set forth in such Prospectus Supplement.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
NATIONSBANK, AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE "FDIC") OR ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER 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 , 1995.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated herein by reference:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994;
(c) The Corporation's Current Reports on Form 8-K filed February 24,
1993, as subsequently amended; October 8, 1993, as subsequently amended;
August 4, 1994; September 21, 1994; October 3, 1994; December 22, 1994; and
January 26, 1995; and
(d) The description of the Corporation's Common Stock contained in its
registration statement filed pursuant to Section 12 of the 1934 Act, and
any amendment or report filed for the purpose of updating such description,
including the Corporation's Current Report on Form 8-K filed on September
21, 1994.
All reports and any definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby 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 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 also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO JOHN
E. MACK, SENIOR VICE PRESIDENT AND TREASURER, NATIONSBANK CORPORATION,
NATIONSBANK CORPORATE CENTER, CORPORATE TREASURY DIVISION, CHARLOTTE, NORTH
CAROLINA 28255. TELEPHONE REQUESTS MAY BE DIRECTED TO (704) 386-5972.
AVAILABLE INFORMATION
NationsBank is subject to the informational requirements of the 1934 Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, 13th Floor, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, upon payment of prescribed rates. In addition, reports,
proxy statements and other information concerning NationsBank may be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and at the offices of The Pacific Stock Exchange, Incorporated,
301 Pine Street, San Francisco, California 94104.
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NATIONSBANK CORPORATION
GENERAL
NationsBank is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), with its principal assets being
the stock of its banking and non-banking subsidiaries. Through its banking
subsidiaries (the "Banks") and its various non-banking subsidiaries, NationsBank
provides banking and banking-related services, primarily throughout the
Southeast and Mid-Atlantic States and Texas. The principal executive offices of
NationsBank are located at NationsBank Corporate Center, Charlotte, North
Carolina 28255. Its telephone number is (704) 386-5000.
OPERATIONS
NationsBank provides a diversified range of banking and certain non-banking
financial services to its customers through the General Bank, the Institutional
Group and the Financial Services unit. The General Bank provides comprehensive
service in the commercial and retail banking fields, including Trust and Private
Banking operations, the origination and servicing of home mortgage loans, the
issuance and servicing of credit cards and certain insurance services. The
General Bank also offers full service brokerage services and discount brokerage
services for its customers through subsidiaries of NationsBank.
The Institutional Group provides to domestic and international customers
comprehensive corporate banking and investment banking services, including
loan syndication, treasury management, and leasing; underwriting, trading or
distributing a wide range of securities (including bank-eligible securities and,
to a limited extent, bank-ineligible securities as authorized by the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board") under
Section 20 of the Glass-Steagall Act); options, futures, forwards and swaps
on certain interest rate and commodity products, and spot and forward foreign
exchange contracts. The Institutional Group provides its services through
various domestic offices as well as offices located in London, Frankfurt,
Singapore, Mexico City, Grand Cayman, Nassau, Tokyo, and Osaka.
NationsBank currently has banking operations in the following jurisdictions
(with the approximate number of banking offices as of December 31, 1994 in
parentheses): District of Columbia (34); Florida (392); Georgia (197); Kentucky
(4); Maryland (236); North Carolina (233); South Carolina (177); Tennessee
(104); Texas (281); and Virginia (246). NationsBank also has a banking
subsidiary in Delaware that issues and services credit cards. In addition to the
banking offices located in the above states, the various Banks have loan
production offices located in New York City, Chicago, Los Angeles, Denver and
Birmingham. The Banks also provide fully automated, 24-hour cash dispensing and
depositing services throughout the states in which they are located, through
approximately 2,100 automated teller machines.
The Financial Services unit consists of NationsCredit Corporation, a
consumer finance subsidiary, and Greyrock Capital Group Inc. (formerly named
Nations Financial Capital Corporation), a commercial finance subsidiary.
NationsCredit Corporation provides consumer and retail loan programs and also
offers inventory financing to manufacturers, importers and distributors; it has
approximately 240 offices located in 32 states. Greyrock Capital Group Inc.
meets the specialized capitalization, leasing, debt restructuring and
acquisition needs of small to large corporations; it also provides consumer
loans secured by automobiles and real estate.
As part of its operations, NationsBank regularly evaluates its lines of
business and from time to time may increase, decrease or terminate any of its
activities as the result of such evaluations. In particular, the Corporation
regularly evaluates the potential acquisition of, and holds discussions with,
various financial institutions and other businesses of a type eligible for bank
holding company investment. In addition, NationsBank regularly analyzes the
values of, and submits bids for, the acquisition of customer-based funds and
other liabilities and assets of such financial institutions and other
businesses. As a general rule, NationsBank publicly announces such material
acquisitions when a definitive agreement has been reached.
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SUPERVISION AND REGULATION
GENERAL
As a registered bank holding company, NationsBank is subject to the
supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which are subject to
regulation, supervision and examination by the Office of the Comptroller of the
Currency (the "Comptroller"). The Banks are also subject to regulation by the
FDIC and other federal regulatory agencies. In addition to banking laws,
regulations and regulatory agencies, NationsBank and its subsidiaries and
affiliates are subject to various other laws and regulations and supervision and
examination by other regulatory agencies, all of which directly or indirectly
affect the operations and management of NationsBank and its ability to make
distributions. The following discussion summarizes certain aspects of those laws
and regulations that affect NationsBank.
Under the BHCA, the activities of NationsBank, and those of companies which
it controls or in which it holds more than 5% of the voting stock, are limited
to banking or managing or controlling banks or furnishing services to or
performing services for its subsidiaries, or any other activity which the
Federal Reserve Board determines to be so closely related to banking or managing
or controlling banks as to be a proper incident thereto. In making such
determinations, the Federal Reserve Board is required to consider whether the
performance of such activities by a bank holding company or its subsidiaries can
reasonably be expected to produce benefits to the public such as greater
convenience, increased competition or gains in efficiency that outweigh possible
adverse effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest or unsound banking practices. Generally, bank
holding companies, such as NationsBank, are required to obtain prior approval of
the Federal Reserve Board to engage in any new activity not previously approved
by the Federal Reserve Board or to acquire more than 5% of any class of voting
stock of any company.
The BHCA also requires bank holding companies to obtain the prior approval
of the Federal Reserve Board before acquiring more than 5% of any class of
voting stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding company
will be able to acquire banks in states other than its home state beginning
September 29, 1995. Until such provisions are effective, interstate acquisitions
by bank holding companies will be subject to current Federal law, which provides
that no application to acquire shares of a bank located outside of North
Carolina (the state in which the operations of the Banks were principally
conducted on the date the Corporation became subject to the BHCA) may be
approved by the Federal Reserve Board unless such acquisition is specifically
authorized by the laws of the state in which the bank whose shares are to be
acquired is located.
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, thereby creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity either to "opt out"
of this provision, thereby prohibiting interstate branching in such states, or
to "opt in" at an earlier time, thereby allowing interstate branching within
that state prior to June 1, 1997. Furthermore, pursuant to such Act, a bank is
now able to open new branches in a state in which it does not already have
banking operations, if the laws of such state permit such DE NOVO branching.
As previously described, NationsBank regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. The likelihood and timing of any such changes
and the impact such changes might have on NationsBank and its subsidiaries,
however, cannot be determined at this time.
CAPITAL AND OPERATIONAL REQUIREMENTS
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, those regulatory agencies may
from time to time require that a banking organization maintain capital above the
minimum levels, whether because of its financial condition or actual or
anticipated growth.
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The Federal Reserve Board risk-based guidelines define a two-tier capital
framework. Tier 1 capital consists of common and qualifying preferred
shareholders' equity, less certain intangibles and other adjustments. Tier 2
capital consists of subordinated and other qualifying debt, and the allowance
for credit losses up to 1.25 percent of risk-weighted assets. The sum of Tier 1
and Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50 percent of which must consist of Tier 1
capital. Risk-based capital ratios are calculated by dividing Tier 1 and total
capital by risk-weighted assets. Assets and off-balance sheet exposures are
assigned to one of four categories of risk-weights, based primarily on relative
credit risk. The minimum Tier 1 capital ratio is 4 percent and the minimum total
capital ratio is 8 percent. The Corporation's Tier 1 and total risk-based
capital ratios under these guidelines at December 31, 1994 were 7.43 percent and
11.47 percent, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
total assets. Although the stated minimum ratio is 3 percent, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3 percent. The Corporation's leverage ratio at December 31, 1994
was 6.18 percent. Management believes that NationsBank meets its leverage ratio
requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent's general unsecured creditors. In addition, FDICIA requires the
various regulatory agencies to prescribe certain non-capital standards for
safety and soundness relating generally to operations and management, asset
quality and executive compensation and permits regulatory action against a
financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6 percent, a total capital ratio of at
least 10 percent and a leverage ratio of at least 5 percent and not be subject
to a capital directive order. An "adequately capitalized" institution must have
a Tier 1 capital ratio of at least 4 percent, a total capital ratio of at least
8 percent and a leverage ratio of at least 4 percent, or 3 percent in some
cases. Under these guidelines, each of the Banks is considered adequately or
well capitalized.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. That
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have proposed amendments to
existing risk-based capital regulations to provide for the consideration of
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position) in the determination of a bank's minimum capital
requirements. Those proposals, while still under consideration, would require
banks with interest rate risk in excess of defined thresholds to maintain
additional capital beyond that generally required.
DISTRIBUTIONS
The Corporation's funds for cash distributions to its shareholders are
derived from a variety of sources, including cash and temporary investments. The
primary source of such funds, however, is dividends received from its banking
subsidiaries. The amount of dividends that each Bank may declare in a calendar
year without
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approval of the Comptroller is the Bank's net profits for that year, as defined
by statute, combined with its net retained profits, as defined, for the
preceding two years. In addition, from time to time NationsBank applies for, and
may receive, permission from the Comptroller for one or more of the Banks to
declare special dividends. In 1995, the Banks can initiate dividend payments,
without prior regulatory approval, of up to $1.0 billion plus an additional
amount equal to their net profits for 1995 up to the date of any such dividend
declaration.
In addition to the foregoing, the ability of NationsBank and the Banks to
pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of NationsBank, its shareholders and its creditors
to participate in any distribution of the assets or earnings of its subsidiaries
is further subject to the prior claims of creditors of the respective
subsidiaries.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies are
expected to act as a source of financial strength to each subsidiary bank and to
commit resources to support each such subsidiary. This support may be required
at times when a bank holding company may not be able to provide such support. In
the event of a loss suffered or anticipated by the FDIC -- either as a result of
default of a banking or thrift subsidiary of NationsBank or related to FDIC
assistance provided to a subsidiary in danger of default -- the other banking
subsidiaries of NationsBank may be assessed for the FDIC's loss, subject to
certain exceptions.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be used for
general corporate purposes, including the Corporation's working capital needs,
the funding of investments in, or extensions of credit to, its banking and
nonbanking subsidiaries, possible acquisitions of other financial institutions
or their assets or liabilities, possible acquisitions of or investments in other
businesses of a type eligible for bank holding companies and possible reduction
of outstanding indebtedness or repurchase of outstanding equity securities of
the Corporation. Pending such use, the Corporation may temporarily invest the
net proceeds in investment grade securities. The Corporation may, from time to
time, engage in additional capital financings of a character and in amounts to
be determined by the Corporation in light of its needs at such time or times and
in light of prevailing market conditions. If the Corporation elects at the time
of issuance of Debt Securities to make different or more specific use of
proceeds other than that set forth herein, such use will be described in the
applicable Prospectus Supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
each of the years in the five-year period ended December 31, 1994:
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<CAPTION>
YEAR ENDED
DECEMBER 31,
1994 1993 1992 1991 (1) 1990
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits.................................................... 1.9 2.3 2.4 1.1 1.3
Including interest on deposits.................................................... 1.5 1.5 1.4 1.0 1.1
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(1) Ratios include the 1991 restructuring expense of $330 million recorded in
connection with the merger of a subsidiary of the Corporation into
C&S/Sovran Corporation, effective December 31, 1991. On a pro forma basis,
excluding the 1991 restructuring expense of $330 million, the Ratio of
Earnings to Fixed Charges excluding interest on deposits was 1.3, and the
Ratio of Earnings to Fixed Charges including interest on deposits was 1.1.
For purposes of computing the consolidated ratios, earnings represent net
income of the Corporation plus applicable income taxes and fixed charges, less
capitalized interest and the equity in undistributed earnings of unconsolidated
subsidiaries and associated companies. Fixed charges represent interest expense
(exclusive of
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interest on deposits in one case and inclusive of such interest in the other),
capitalized interest, amortization of debt discount and appropriate issuance
costs and one-third (the amount deemed to represent an appropriate interest
factor) of net rent expense under all lease commitments.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Debt Securities in one or more of
the following ways: (i) through underwriters or dealers; (ii) through agents; or
(iii) directly by the Corporation to one or more purchasers. Such underwriters,
dealers or agents may be affiliates of NationsBank. The Prospectus Supplement
with respect to a particular offering of a series of Debt Securities will set
forth the terms of the offering of such Debt Securities, including the name or
names of any underwriters or agents with whom NationsBank has entered into
arrangements with respect to the sale of such Debt Securities, the public
offering or purchase price of such Debt Securities and the proceeds to the
Corporation from such sales, and any underwriting discounts, agency fees or
commissions and other items constituting underwriters' compensation, the initial
public offering price, any discounts or concessions to be allowed or reallowed
or paid to dealers and the securities exchange, if any, on which such Debt
Securities may be listed.
If underwriters are used in the offer and sale of Debt Securities, the Debt
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Debt Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters, or by
underwriters without a syndicate, all of which underwriters in either case will
be designated in the applicable Prospectus Supplement. Unless otherwise set
forth in the applicable Prospectus Supplement, under the terms of the
underwriting agreement, the obligations of the underwriters to purchase Debt
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the Debt Securities if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may be offered and sold directly by the Corporation or
through agents designated by the Corporation from time to time. Any agent
involved in the offer or sale of the Debt Securities with respect to which this
Prospectus is delivered will be named in, and any commissions payable by the
Corporation to such agent will be set forth in or calculable from, the
applicable Prospectus Supplement or a pricing supplement thereto. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best-efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Corporation
may authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Debt Securities from the Corporation at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") providing for payment and
delivery on the date or dates stated in the Prospectus Supplement. Each Delayed
Delivery Contract will be for an amount of Debt Securities not less than and,
unless the Corporation otherwise agrees, the aggregate amount of Debt Securities
sold pursuant to Delayed Delivery Contracts shall be not more than the
respective minimum and maximum amounts stated in the Prospectus Supplement.
Institutions with which Delayed Delivery Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions, but shall in
all cases be subject to the approval of the Corporation in its sole discretion.
The obligations of the purchaser under any Delayed Delivery Contract to pay for
and take delivery of Debt Securities will not be subject to any conditions
except that (i) the purchase of Debt Securities by such institution shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
such institution is subject; and (ii) any related sale of Debt Securities to
underwriters shall have occurred. A commission set forth in the Prospectus
Supplement will be paid to underwriters soliciting purchases of Debt Securities
pursuant to Delayed Delivery Contracts accepted by the Corporation. The
underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts.
Any series of Debt Securities offered and sold pursuant to this Prospectus
and the applicable Prospectus Supplement will be new issues of securities with
no established trading market. Any underwriters to whom
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Debt Securities are sold by the Corporation for public offering and sale may
make a market in such Debt Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any Debt Securities.
Any underwriter, dealer or agent participating in the distribution of any
Debt Securities may be deemed to be an underwriter, as that term is defined in
the Securities Act of 1933, as amended (the "1933 Act"), of the Debt Securities
so offered and sold, and any discounts or commissions received by them from
NationsBank and any profit realized by them on the sale or resale of the Debt
Securities may be deemed to be underwriting discounts and commissions under the
1933 Act.
Under agreements entered into with the Corporation, underwriters, dealers
and agents may be entitled to indemnification by the Corporation against certain
civil liabilities, including liabilities under the 1933 Act, or to contribution
with respect to payments which the underwriters or agents may be required to
make in respect thereof.
The participation of an affiliate or subsidiary of NationsBank in the offer
and sale of the Debt Securities will comply with the requirements of Schedule E
to the By-laws of the National Association of Securities Dealers, Inc. (the
"NASD") regarding the participation in a distribution of securities by an
affiliate. No NASD member participating in offers and sales of the Debt
Securities will execute a transaction in the Debt Securities in a discretionary
account without the prior written specific approval of the member's customer.
This Prospectus and related Prospectus Supplements also may be used by
direct or indirect wholly owned subsidiaries of NationsBank in connection with
offers and sales related to secondary market transactions in the Debt
Securities. Such subsidiaries may act as principal or agent in such
transactions. Any such sales will be made at prices related to prevailing market
prices at the time of sale.
Underwriters, dealers and agents also may be customers of, engage in
transactions with, or perform other services for the Corporation in the ordinary
course of business.
DESCRIPTION OF DEBT SECURITIES
THE FOLLOWING DESCRIPTION OF THE TERMS OF THE DEBT SECURITIES SETS FORTH
CERTAIN GENERAL TERMS AND PROVISIONS OF THE DEBT SECURITIES TO WHICH ANY
PROSPECTUS SUPPLEMENT MAY RELATE. THE PARTICULAR TERMS OF THE DEBT SECURITIES
OFFERED BY ANY PROSPECTUS SUPPLEMENT AND THE EXTENT, IF ANY, TO WHICH SUCH
GENERAL PROVISIONS MAY APPLY TO THE DEBT SECURITIES SO OFFERED WILL BE DESCRIBED
IN THE PROSPECTUS SUPPLEMENT RELATING TO SUCH DEBT SECURITIES.
Any Senior Debt Securities offered hereby are to be issued under an
Indenture dated as of January 1, 1995 (such Indenture, as it may be amended from
time to time, the "Senior Indenture") between the Corporation and BankAmerica
National Trust Company, Trustee (the "Senior Trustee"). Any Subordinated Debt
Securities offered hereby are to be issued under an Indenture dated as of
January 1, 1995 (such Indenture, as it may be amended from time to time, the
"Subordinated Indenture") between the Corporation and The Bank of New York,
Trustee (the "Subordinated Trustee" and, together with the Senior Trustee, the
"Trustees"). A copy of each of the Senior Indenture and the Subordinated
Indenture (each, an "Indenture" and together, the "Indentures") is incorporated
by reference in the Registration Statement of which this Prospectus forms a
part.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to and qualified in their entirety by
reference to the provisions of the applicable Indentures. Whenever particular
sections or defined terms of the Indentures are referred to, it is intended that
such sections or defined items shall be incorporated herein by reference. Unless
otherwise indicated, capitalized terms shall have the meanings ascribed to them
in the Indentures.
GENERAL
The respective Indentures provide that there is no limitation on the amount
of debt securities that may be issued thereunder from time to time. The amount
of Debt Securities that may be offered and sold pursuant to this Prospectus,
however, is limited to the aggregate initial offering price of the securities
registered under the Registration Statement of which this Prospectus forms a
part, subject to reduction as the result of the sale by the Corporation of other
securities under the Registration Statement.
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The Debt Securities will be direct, unsecured obligations of the
Corporation. The Senior Debt Securities of each series will rank equally with
all unsecured senior debt of the Corporation. The Subordinated Debt Securities
of each series will be subordinate and junior in right of payment to the prior
payment in full of the Senior Indebtedness (as hereinafter defined) of the
Corporation. See "DESCRIPTION OF DEBT SECURITIES -- Subordination."
The Debt Securities may be issued in fully registered form without coupons
("Registered Securities") or in bearer form with or without coupons ("Bearer
Securities"). In addition, all or a portion of the Debt Securities may be issued
in temporary or permanent global form ("Global Securities"). Unless otherwise
specified in an applicable Prospectus Supplement, the Debt Securities will be
only Registered Securities. If any Debt Securities are to be offered as Bearer
Securities, such Bearer Securities, subject to certain exceptions, will not be
offered or sold to persons who are in the United States or to United States
persons. See "DESCRIPTION OF DEBT SECURITIES -- Limitations on Issuance of
Bearer Securities." Debt Securities that are issued in book-entry form will be
issued in global registered form. See "DESCRIPTION OF DEBT
SECURITIES -- Book-Entry Securities." Unless otherwise set forth in the
applicable Prospectus Supplement, the Debt Securities denominated in U.S.
dollars will be issued in denominations of (i) $1,000 or an integral multiple
thereof for Registered Securities and (ii) $5,000 for Bearer Securities.
The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit. If any of the Debt Securities are denominated in a
foreign currency or currency unit, or if principal of (or premium, if any) or
any interest on any of the Debt Securities is payable in any foreign currency or
currency unit, the authorized denominations, restrictions, tax consequences,
specific terms and other information with respect to such issue of Debt
Securities and such foreign currency or currency unit will be set forth in the
Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the same or
various maturities. Certain Debt Securities may be issued which provide for an
amount less than the principal amount thereof to be due and payable in the event
of an acceleration of the maturity thereof (each an "Original Issue Discount
Security"). Original Issue Discount Securities may bear no interest or may bear
interest at a rate which at the time of issuance is below market rates and will
be sold at a discount (which may be substantial) below their stated principal
amount. Certain Original Issue Discount Securities may be issued with original
issue discount for United States Federal income tax purposes. The Prospectus
Supplement with respect to any series of Debt Securities issued with such
original issue discount will contain a discussion of Federal income tax
considerations with respect thereto.
The particular terms of each series of Debt Securities to be offered and
sold will be described in the Prospectus Supplement with respect to such Debt
Securities, including: (1) the designation of the particular series; (2) the
aggregate principal amount of such series which may be authenticated and
delivered under the applicable Indenture; (3) whether Debt Securities of the
series are to be issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, whether any Debt Securities of the series are to be
issuable initially in temporary global form with or without coupons and, if so,
the name of the depositary with respect to any such temporary global Debt
Security, and whether any Debt Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Debt Security may exchange such
interests for Debt Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided herein, and the name of the
depositary with respect to any such permanent global Debt Security; (4) the date
as of which any Bearer Securities of such series and any temporary Debt Security
in global form representing outstanding Debt Securities of such series shall be
dated, if other than the date of original issuance of the first Debt Securities
of the series to be issued; (5) the person to whom any interest on any
Registered Security of the series shall be payable, if other than the person in
whose name that Debt Security (or one or more predecessor Debt Securities) is
registered at the close of business on the regular record date for such
interest, the manner in which, or the person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature, the
extent to which, or the manner in which, any interest payable on a temporary
global Debt Security on an interest payment date will be paid if other than in
the manner provided herein, and the extent to which, or the manner in which, any
interest payable on a permanent global Debt Security on an interest payment date
will be paid; (6) the date or dates on which the principal
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of the Debt Securities of such series is payable; (7) the rate or rates, and if
applicable the method used to determine the rate, at which the Debt Securities
of such series shall bear interest, if any, the date or dates from which such
interest shall accrue, the date or dates on which such interest shall be payable
and the record date or dates for the interest payable on any Registered
Securities on any interest payment date; (8) the place or places at which,
subject to the provisions of the applicable Indenture, the principal of (and
premium, if any, on) and any interest on Debt Securities of such series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Debt Securities of the series may be surrendered for
exchange and notices and demands to or upon the Corporation in respect of the
Debt Securities of the series and the Indenture may be served; (9) the
obligation, if any, of the Corporation to redeem or purchase Debt Securities of
such series, at the option of the Corporation or at the option of a holder
thereof, pursuant to any sinking fund or other redemption provisions and the
period or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be so redeemed or
purchased, in whole or in part; (10) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which any Registered
Securities of such series shall be issuable, and the denomination or
denominations in which any Bearer Securities of the series shall be issuable, if
other than denominations of $5,000; (11) if other than the principal amount
thereof, the portion of the principal amount of Debt Securities of such series
which shall be payable upon declaration of acceleration of the maturity thereof;
(12) the currency, currencies or currency units, in which payment of the
principal of (and premium, if any, on) and any interest on any Debt Securities
of the series shall be payable if other than the currency of the United States
of America and the manner of determining the equivalent thereof in the currency
of the United States of America for purposes of the applicable Indenture; (13)
if the principal of (and premium, if any, on) or any interest on the Debt
Securities of the series are to be payable, at the election of the Corporation
or a holder thereof, in one or more currencies or currency units, other than
that or those in which the Debt Securities are stated to be payable, the
currency or currencies in which payment of the principal of (and premium, if
any, on) and any interest on Debt Securities of such series as to which such
election is made shall be payable, and the periods within which and the terms
and conditions upon which such election is to be made; (14) if the amount of
payments of principal of (and premium, if any, on) or any interest on the Debt
Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined; (15) whether the Debt
Securities will be issued in book-entry only form; (16) any interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to Debt Securities of such series; (17) if either or both of Section
14.02 (defeasance) or Section 14.03 (covenant defeasance) of the applicable
Indenture do not apply to the Debt Securities of the series; (18) whether and
under what circumstances the Corporation will pay additional amounts in respect
of any series of Debt Securities and whether the Corporation has the option to
redeem such Debt Securities rather than pay such additional amounts; (19) any
provisions relating to the extension of maturity of, or the renewal of, Debt
Securities of such series, or the conversion of Debt Securities of such series
into other securities of the Corporation; and (20) any other terms of the Debt
Securities of such series (which terms shall not be inconsistent with the
provisions of the applicable Indenture).
The ability of NationsBank to make payments of principal of and premium, if
any, and interest on the Debt Securities may be affected by the ability of the
Banks to pay dividends. The ability of the Banks, as well as of the Corporation,
to pay dividends in the future currently is, and could be further, influenced by
bank regulatory requirements and capital guidelines. See "SUPERVISION AND
REGULATION."
Neither the Senior Indenture nor the Subordinated Indenture contains
provisions that would provide protection to holders of Debt Securities against a
decline in credit quality resulting from takeovers, recapitalizations, the
incurrence of additional indebtedness or similar restructurings by the
Corporation. If credit quality declines as a result of such an event, or
otherwise, the ratings of any Debt Securities then outstanding may be withdrawn
or downgraded.
EXCHANGE, REGISTRATION AND TRANSFER
At the option of the holder, subject to the terms of the applicable
Indenture, Registered Securities of any series (other than Registered Securities
issued in book-entry form) will be exchangeable for other Registered Securities
of the same series and of an equal aggregate principal amount and tenor of any
authorized denominations. In addition, if Debt Securities of any series are
issuable as both Registered Securities and Bearer Securities, at the option of
the holder, and subject to the terms of the applicable Indenture, Bearer
Securities
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(with all unmatured coupons, except as provided below, and with all matured
coupons in default) of such series will be exchangeable for Registered
Securities of the same series and of a like aggregate principal amount and tenor
of any authorized denominations. Bearer Securities with coupons appertaining
thereto surrendered in exchange for Registered Securities on any record date and
before the relevant date for payment of interest shall be surrendered without
the coupon relating to such date for payment of interest, and interest will not
be payable on such date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the holder of such coupon
when due in accordance with the terms of the applicable Indenture. Unless
otherwise provided in an applicable Prospectus Supplement, Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, may not be exchanged by a holder for Bearer Securities. For a
discussion of restrictions on the exchange of any portion of a temporary global
Debt Security for Bearer Securities, see "DESCRIPTION OF DEBT
SECURITIES -- Temporary Global Securities" and " -- Limitations on Issuance of
Bearer Securities."
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent of the Corporation designated
and maintained for such purpose with respect to Debt Securities of a series
pursuant to the terms of the applicable Indenture, as referred to in an
applicable Prospectus Supplement. Such transfer or exchange will be effected
upon the Security Registrar or transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Bearer Securities will be transferable by delivery.
If a Prospectus Supplement refers to any transfer agents (in addition to
the Security Registrar) designated by the Corporation with respect to any series
of Debt Securities, the Corporation may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that if Debt Securities of a series are
issuable solely as Registered Securities, the Corporation will be required to
maintain a transfer agent in each place of payment for such series, and if Debt
Securities of a series are issuable as Bearer Securities, the Corporation will
be required to maintain (in addition to the Security Registrar) a transfer agent
in a place of payment for such series located outside the United States and its
possessions. The Corporation may at any time designate additional transfer
agents with respect to any series of Debt Securities.
The Corporation shall not be required to (i) issue, exchange, or register
the transfer of any Debt Security of any series to be redeemed for a period of
15 days next preceding any selection of such Debt Securities to be redeemed; or
(ii) to exchange or register the transfer of any Registered Security so
selected, called or being called for redemption, except the unredeemed portion
of any Registered Security being redeemed in part; or (iii) exchange any Bearer
Security so selected for redemption, except to exchange such Bearer Security for
a Registered Security of that series and like tenor which is immediately
surrendered for redemption.
For a discussion of restrictions on the exchange, registration and transfer
of Book-Entry Securities, see "DESCRIPTION OF DEBT SECURITIES -- Book-Entry
Securities."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
principal of (and premium, if any, on) and any interest on Registered Securities
will be payable, subject to any applicable laws and regulations, at the offices
of such paying agents as the Corporation may designate from time to time
pursuant to the applicable Indenture, except that, at the option of the
Corporation, payment of any interest may be made by check mailed to the address
of the person entitled thereto as such address shall appear in the Security
Register. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of interest on a Registered Security on any interest payment date
generally will be made to the person in whose name such Registered Security is
registered at the close of business on the regular record date for such interest
payment date.
Unless otherwise indicated in an applicable Prospectus Supplement,
principal of (and premium, if any, on) and any interest on Bearer Securities
will be payable, subject to any applicable laws and regulations, at the offices
of such paying agents outside the United States and its possessions as the
Corporation may designate from time to time, pursuant to the applicable
Indenture, or, at the option of the Corporation, by check mailed
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to an address located, or by transfer to an account maintained by the payee with
a financial institution located, outside the United States and its possessions.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on a Bearer Security on any interest payment date will be made only
against surrender to the paying agent of the coupon relating to such interest
payment date. No payment with respect to any Bearer Security will be made at any
office or agency of the Corporation in the United States or its possessions or
by check mailed to any address in the United States or its possessions or by
transfer to any account maintained with a financial institution located in the
United States or its possessions. Notwithstanding the foregoing, payments of
principal of (and premium, if any, on) and any interest on Bearer Securities
denominated and payable in U.S. dollars will be made at the office of the
Corporation's paying agent in the Borough of Manhattan, The City of New York (or
such other places in the United States as the Corporation shall designate from
time to time), if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies outside the United States and its possessions
is illegal or effectively precluded by exchange controls or other similar
restrictions.
If Debt Securities of a series are issuable solely as Registered
Securities, the Corporation will be required to maintain a paying agent in each
place of payment for such series, and if Debt Securities of a series are
issuable as Bearer Securities, the Corporation will be required to maintain (i)
a paying agent in the Borough of Manhattan, The City of New York (or such other
places in the United States as the Corporation may designate from time to time),
for payments with respect to any Registered Securities of the series (and for
payments with respect to Bearer Securities of the series in the circumstances
described above, but not otherwise) and (ii) a paying agent in a place of
payment located outside the United States and its possessions where Debt
Securities of such series and any coupons relating thereto may be presented and
surrendered for payment; PROVIDED, HOWEVER, that if the Debt Securities of such
series are listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland, Limited (the "London Stock Exchange"), the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
its possessions and such stock exchange shall so require, the Corporation will
maintain a paying agent in London, Luxembourg or any other required city located
outside the United States and its possessions, as the case may be, for the Debt
Securities of such series.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of NationsBank of Georgia, National Association, in
Atlanta, Georgia, will be designated as paying agent for the Corporation for
payments with respect to Registered Securities of each series. Subject to the
limitations described above, with respect to Debt Securities of a series
issuable as Bearer Securities, the principal corporate trust offices of the
Senior Trustee in the Borough of Manhattan, The City of New York, will be
designated as paying agent for the Corporation with respect to Senior Debt
Securities of each series, and the principal corporate trust offices of the
Subordinated Trustee in the Borough of Manhattan, The City of New York, will be
designated as paying agent for the Corporation with respect to Subordinated Debt
Securities of each series. Any paying agents outside the United States and its
possessions and any other paying agents in the United States or its possessions
initially designated by the Corporation for the Debt Securities of each series
will be named in an applicable Prospectus Supplement. The Corporation may at any
time designate additional paying agents or rescind the designation of any paying
agent or approve a change in the office through which any paying agent acts.
BOOK-ENTRY SECURITIES
If so specified in an applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series issuable as Registered Securities may be
issued in book-entry form represented by one or more global Debt Securities in
registered form ("Book-Entry Global Securities") to be deposited with, or on
behalf of a depositary (a "Book-Entry Depositary") identified in the Prospectus
Supplement relating to such series, for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as they may
direct). The specific terms of the depositary arrangement with respect to any
such series of Debt Securities will be described in the Prospectus Supplement
relating to such series. Unless otherwise specified in the applicable Prospectus
Supplement, the Corporation anticipates that the following provisions will apply
to all depositary arrangements with a Book-Entry Depositary.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be issued in book-entry form will be represented by a
Book-Entry Global Security registered in the name of the Book-
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Entry Depositary or its nominee. Upon the issuance of a Book-Entry Global
Security, the Book-Entry Depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt Securities
represented by such Book-Entry Global Security to the accounts of institutions
that have accounts with such depositary or its nominee ("participants"). The
accounts to be credited shall be designated by the underwriters or agents of
such Debt Securities or by the Corporation, if such Debt Securities are offered
and sold directly by the Corporation. Ownership of beneficial interests in such
Book-Entry Global Security will be limited to participants or persons that may
hold interests through participants. Ownership of a beneficial interest in such
a Book-Entry Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Book-Entry
Depositary or its nominee (with respect to participants' interests) for such
Book-Entry Global Security or by participants or persons that hold through
participants. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Book-Entry Global Security.
So long as the Book-Entry Depositary for a Book-Entry Global Security, or
its nominee, is the registered owner of such Book-Entry Global Security, such
depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Book-Entry Global
Security for all purposes under the Indenture governing such Debt Securities.
Except as set forth below, owners of beneficial interests in such Book-Entry
Global Security will not be entitled to have Debt Securities of the series
represented by such Book-Entry Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities of
such series in definitive form and will not be considered the owners or holders
thereof under the Indenture. Accordingly, each person owning a beneficial
interest in a Book-Entry Global Security must rely on the procedures of the
Book-Entry Depositary and, if such person is not a participant, on the
procedures of the participant and, if applicable, the indirect participant,
through which such person owns its interest, to exercise any rights of a holder
under the Indenture.
Payment of principal of (and premium, if any) and any interest on Debt
Securities registered in the name of or held by a Book-Entry Depositary or its
nominee will be made to the Book-Entry Depositary or its nominee, as the case
may be, as the registered owner or the holder of the Book-Entry Global Security
representing such Debt Securities. None of the Corporation, the Trustee, any
paying agent, any authenticating agent or the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Book-Entry Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Corporation expects that the Book-Entry Depositary for Debt Securities
of a series, upon receipt of any payment of principal of (and premium, if any)
or interest on the Debt Securities represented by such Book-Entry Global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to their respective holdings in principal amount of
beneficial interest in such Book-Entry Global Security as shown on the records
of such Book-Entry Depositary. The Corporation also expects that payments by
participants to owners of beneficial interests in such Book-Entry 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 in bearer form or registered in "street name."
Such payments will be the responsibility of such participants.
Unless and until it is exchanged in whole for Debt Securities in definitive
form, a Book-Entry Global Security may not be transferred except as a whole by
the Book-Entry Depositary for such Book-Entry Global Security to a nominee of
such depositary or by a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such nominee to a
successor of such depositary or a nominee of such successor. If a Book-Entry
Depositary for Debt Securities in registered form is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Corporation within 90 days, the Corporation will issue Debt Securities in
definitive registered form in exchange for the Book-Entry Global Security or
Book-Entry Global Securities representing all such Debt Securities. In addition,
the Corporation may at any time and in its sole discretion determine not to have
any Debt Securities represented by a Book-Entry Global Security and, in such
event, will issue such Debt Securities in definitive registered form in exchange
for the Book-Entry Global Security or Book-Entry Global Securities representing
all such Debt Securities. In any such instance, an owner of a beneficial
interest in a Book-Entry Global Security will be entitled to physical delivery
in definitive form of Debt Securities of the series represented by such Book-
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Entry Global Security equal in principal amount to such beneficial interest and
to have such Debt Securities registered in the name of the owner of such
beneficial interest.
TEMPORARY GLOBAL SECURITIES
If so specified in an applicable Prospectus Supplement, all or any portion
of Debt Securities of a series that are issuable as Bearer Securities initially
will be represented by one or more Debt Securities in temporary global form,
with one or more coupons or without 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"), and CEDEL, S.A.
("CEDEL"), for credit to the respective designated accounts for beneficial
owners. On and after the date determined as provided in any such temporary
global Debt Security and described in an applicable Prospectus Supplement (the
"Exchange Date"), each such temporary global Debt Security will be exchanged for
definitive Debt Securities, in bearer form, registered form, permanent global
bearer form or permanent global registered form, or any combination thereof, as
specified in an applicable Prospectus Supplement. Unless otherwise specified in
such temporary global Debt Security, no Bearer Security (including a Debt
Security in definitive global bearer form) delivered in exchange for any portion
of a temporary global Debt Security shall be delivered to any location in the
United States or its possessions in connection with such exchange. See
"DESCRIPTION OF DEBT SECURITIES -- Limitations on Issuance of Bearer
Securities."
Unless otherwise specified in an applicable Prospectus Supplement,
definitive Debt Securities in respect of any portion of a temporary global Debt
Security will only be delivered, and interest in respect of any portion of a
temporary global Debt Security payable in respect of an interest payment date
occurring prior to the issuance of definitive Debt Securities will only be paid,
upon delivery of a certificate signed by Euroclear or CEDEL, as the case may be,
with respect to the portion of the temporary global Debt Security held for its
account in the form required by the Indenture. Such certificate must be dated no
earlier than the Exchange Date or such interest payment date, as the case may
be, and must be based on statements provided to Euroclear or CEDEL, as
applicable, by its account holders who are beneficial owners of interests in
such temporary global Debt Security to the effect that such portion is
beneficially owned by (i) a person that is not a United States person, (ii) a
United States person that is (A) the foreign branch of a United States financial
institution purchasing for its own account or for resale or (B) a United States
person who acquired its interest through the foreign branch of a United States
financial institution and who holds such interest through such financial
institution, provided that in either case (A) or (B) the United States financial
institution agrees to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder (the "Treasury Regulations") or (iii) a financial
institution holding for purposes of resale during the restricted period (as such
period is defined in applicable Treasury Regulations and hereinafter described
in "DESCRIPTION OF DEBT SECURITIES -- Limitations on Issuance of Bearer
Securities"). In addition, if the beneficial owner is a financial institution
described in clause (iii) of the preceding sentence (whether or not also
described in clause (i) or (ii)), such financial institution must also have
included in its statement a certification that it has not acquired its interest
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions. It is expected that each of
Euroclear and CEDEL will in such circumstances credit the interest received by
it in respect of such temporary global Debt Security to the accounts of the
beneficial owners thereof (or to such other accounts as they may direct). Unless
otherwise specified in an applicable Prospectus Supplement, interest will not be
payable on any temporary global Debt Security in respect of any interest payment
date occurring after the applicable Exchange Date.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent global Debt
Security may exchange such interests for definitive Debt Securities of such
series and of like tenor and principal amount in any authorized form and
denomination. No Bearer Security delivered in exchange for any portion of a
permanent global Debt Security shall be mailed or otherwise delivered to any
location in the United States or its possessions in connection with such
exchange. Principal of (and premium, if any, on) and any interest on any
permanent global Debt Security will be payable in the manner described in the
applicable Prospectus Supplement. A person having a beneficial interest in a
permanent global Debt Security, except with respect to payment of principal of
(and premium, if any, on) and any interest on such permanent global Debt
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<PAGE>
Security, will be treated as a holder of such principal amount of Debt
Securities outstanding represented by such permanent global Debt Security as
shall be specified in a written statement of the holder of such permanent global
Debt Security or, in the case of a permanent global Debt Security in bearer
form, of Euroclear or CEDEL, which is produced to the Trustee by such person.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States Federal tax laws and regulations, Bearer
Securities may not be offered or sold during the restricted period (as defined
below) in the United States or its possessions or to a United States person
(each as defined below) other than an exempt purchaser (as defined below).
Furthermore, in compliance with such Federal tax laws and regulations, Bearer
Securities may not be delivered, in connection with the sale thereof during the
restricted period, in definitive form within the United States or its
possessions, and interest on Bearer Securities will generally be payable only
outside of the United States and its possessions.
The Corporation will not offer or sell the Bearer Securities during the
restricted period to a person who is within the United States or its possessions
or to a United States person other than an exempt purchaser, and any
underwriter, agent and dealer participating in the offering of Bearer Securities
must covenant that: (i) it has not and will not offer or sell the Bearer
Securities during the restricted period to a person who is within the United
States or its possessions or to a United States person other than an exempt
purchaser; (ii) it has in effect, in connection with the offer and sale of the
Bearer Securities during the restricted period, procedures reasonably designed
to ensure that its employees or agents who are directly engaged in selling the
Bearer Securities are aware that the Bearer Securities cannot be offered or sold
during the restricted period to a person who is within the United States or its
possessions or who is a United States person (other than an exempt purchaser);
(iii) it will not permit any affiliate (within the meaning of Section
1.163-5(c)(2)(i)(D)(4)(iii) of the Treasury Regulations) to acquire any Bearer
Securities for the purpose of offering or selling it during the restricted
period unless such affiliate provides it (for the benefit of the Corporation)
with the covenants contained in this paragraph; (iv) it will not deliver any
Bearer Securities in connection with the sale thereof during the restricted
period, in definitive form within the United States or its possessions; (v) it
will not enter into any written contract with another distributor (within the
meaning of Section 1.163-5(c)(2)(i)(D)(4) of the Treasury Regulations) to offer
or sell the Bearer Securities during the restricted period unless such
distributor provides it (for the benefit of the Corporation) with the covenants
contained in this paragraph; and (vi) if it is a United States person, it is
acquiring the Bearer Securities for purposes of resale in connection with their
original issuance and if it retains the Bearer Securities for its own account,
it will only do so in accordance with the requirements of Section
1.163-5(c)(2)(i)(D)(6) of the Treasury Regulations.
For purposes of the selling restrictions described in this section, an
offer or sale will be considered to be made to a person who is within the United
States or its possessions if the offeror or seller of the Bearer Securities has
an address within the United States or its possessions for the offeree or buyer
of the Bearer Securities with respect to the offer or sale. Bearer Securities
and any coupons appertaining thereto (including Bearer Securities in permanent
global form exchangeable for 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 income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
Under Sections 165(j) and 1287(a) of the Code, a holder that is a United
States person generally will not be entitled to deduct any loss on Bearer
Securities (including for purposes of this paragraph Bearer Securities in global
form exchangeable for Bearer Securities) or coupons (other than Bearer
Securities or coupons having a maturity of one year or less from their dates of
issuance) and must treat as ordinary income any gain realized on the sale or
other disposition (including a retirement of the Bearer Security) of Bearer
Securities or coupons (other than Bearer Securities or coupons having a maturity
of one year or less from their date of issue).
As used herein, "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 and an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source; "United States" means the United States of America (including the States
and the District of Columbia) and "possessions" of the United States include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
15
<PAGE>
and Northern Mariana Islands; "restricted period" means, with respect to a
Bearer Security, the period beginning on the earlier of the closing date or the
first date on which the Bearer Security is offered to persons other than
distributors and ending on the expiration of the 40-day period beginning on the
closing date, except that, notwithstanding the foregoing, any offer or sale of
the Bearer Securities by the Corporation or a distributor shall be deemed to be
made during the restricted period if the Corporation or the distributor holds
the Bearer Security as part of an unsold allotment or subscription; and "exempt
purchaser" means (A) an exempt distributor (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations) that covenants that it is
buying the Bearer Securities for the purpose of resale in connection with the
original issuance thereof, and that if it retains the Bearer Securities for its
own account, it will do so only in accordance with the requirements of Section
1.163-5(c)(2)(i)(D)(6) of the Treasury Regulations, (B) an international
organization described in Section 7701(a)(18) of the Code, (C) a foreign central
bank (as defined in Section 895 of the Code and the Treasury Regulations
thereunder), (D) a foreign branch of the United States financial institution as
described in Section 1.163-5(c)(2)(i)(D)(6)(i) of the Treasury Regulations, and
(E) a United States person who acquires the Bearer Securities through the
foreign branch of a United States financial institution and who holds the Bearer
Securities through such financial institution. Notwithstanding the foregoing,
however, (i) a person described in (A) of this paragraph will not be considered
an exempt purchaser with respect to offers to a non-United States office of such
person; (ii) a person described in (B) or (C) of this paragraph will not be
considered an international organization or a foreign central bank, as the case
may be, with respect to offers that are not made directly and specifically to
such person; (iii) a person described in (E) of this paragraph will be
considered an exempt purchaser only with respect to sales of the Bearer
Securities; and (iv) in the case of persons described in (D) or (E) of this
paragraph, the financial institution holding the Bearer Securities provides a
certificate to the Corporation or the distributor selling the Bearer Securities
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Code and the Treasury Regulations thereunder.
SUBORDINATION
The Subordinated Debt Securities are subordinate and subject, to the extent
and in the manner set forth in the Subordinated Indenture, in right of payment
to the prior payment in full of all Senior Indebtedness of the Corporation.
"Senior Indebtedness" is defined by the Subordinated Indenture as any
indebtedness for money borrowed (including all indebtedness of the Corporation
for borrowed and purchased money of the Corporation, all obligations of the
Corporation arising from off-balance sheet guarantees by the Corporation and
direct credit substitutes, and obligations of the Corporation associated with
derivative products such as interest and foreign exchange rate contracts and
commodity contracts) that is outstanding on the date of execution of the
Subordinated Indenture, or is thereafter created, incurred or assumed, for the
payment of which the Corporation is at the time of determination responsible or
liable as obligor, guarantor or otherwise, and all deferrals, renewals,
extensions and refundings of any such indebtedness or obligations, other than
the Subordinated Debt Securities or any other indebtedness as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness is subordinate in right of
payment to any other indebtedness of the Corporation.
No payment on account of principal of (and premium, if any, on) or
interest, if any, on the Subordinated Debt Securities shall be made, and no
Subordinated Debt Securities shall be purchased, either directly or indirectly,
by the Corporation or any of its subsidiaries, if any default or event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing and the Corporation and the Subordinated Trustee shall have received
written notice thereof from the holders of at least 10 percent in principal
amount of any kind or category of any Senior Indebtedness (or the representative
or representatives of such holders) or the Subordinated Trustee shall have
received written notice thereof from the Corporation.
In the event that any Subordinated Debt Security is declared due and
payable before the date specified therein as the fixed date on which the
principal thereof is due and payable pursuant to the Subordinated Indenture, or
upon any payment or distribution of assets of the Corporation of any kind or
character to creditors upon any dissolution or winding up or total or partial
liquidation or reorganization of the Corporation, all principal of (and premium,
if any) and interest due or to become due upon all Senior Indebtedness shall
first be paid in full before the holders of the Subordinated Debt Securities
(the "Subordinated Debt Holders"), or the Subordinated Trustee, shall be
entitled to retain any assets (other than shares of stock of the Corporation as
reorganized or readjusted or securities of the Corporation or any other
corporation provided for by a plan of
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reorganization or readjustment, the payment of which is subordinated, at least
to the same extent as the Subordinated Debt Securities, to the payment of all
Senior Indebtedness which may at the time be outstanding, provided that the
rights of the holders of the Senior Indebtedness are not altered by such
reorganization or readjustment) so paid or distributed in respect of the
Subordinated Debt Securities (for principal or interest, if any). Upon such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities (other than shares of stock of the Corporation as
reorganized or readjusted or securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated, at least to the same extent as the
Subordinated Debt Securities, to the payment of all Senior Indebtedness which
may at the time be outstanding, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or readjustment), to
which the Subordinated Debt Holders or the Subordinated Trustee would be
entitled, except for the subordination provisions of the Subordinated Indenture,
shall be paid by the Corporation or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
or by the Subordinated Debt Holders or the Subordinated Trustee if received by
them or it, directly to the holders of the Senior Indebtedness (pro rata to each
such holder on the basis of the respective amounts of Senior Indebtedness held
by such holder) or their representatives, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the Subordinated Debt Holders or to the Subordinated
Trustee.
Subject to the payment in full of all Senior Indebtedness, the Subordinated
Debt Holders shall be subrogated (equally and ratably with the holders of all
indebtedness of the Corporation which, by its express terms, ranks on a parity
with the Subordinated Debt Securities and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Corporation applicable to the Senior
Indebtedness until the Subordinated Debt Securities shall be paid in full.
SALE OR ISSUANCE OF CAPITAL STOCK OF BANKS
The Senior Indenture prohibits the issuance, sale or other disposition of
capital stock, or securities convertible into or options, warrants or rights to
acquire capital stock, of any Principal Subsidiary Bank (as defined below) or of
any subsidiary which owns shares of capital stock, or securities convertible
into or options, warrants or rights to acquire capital stock, of any Principal
Subsidiary Bank, with the following exceptions: (a) sales of directors'
qualifying shares; (b) sales or other dispositions for fair market value, if,
after giving effect to such disposition and to conversion of any shares or
securities convertible into capital stock of a Principal Subsidiary Bank, the
Corporation would own directly or indirectly not less than 80% of each class of
the capital stock of such Principal Subsidiary Bank (or any successor
corporation thereto); (c) sales or other dispositions made in compliance with an
order of a court or regulatory authority of competent jurisdiction; (d) any sale
by a Principal Subsidiary Bank (or any successor corporation thereto) of
additional shares of its capital stock to its shareholders at any price, so long
as (i) prior to such sale the Corporation owns, directly or indirectly, shares
of the same class and (ii) immediately after such sale, the Corporation owns,
directly or indirectly, at least as great a percentage of each class of capital
stock of such Principal Subsidiary Bank as it owned prior to such sale of
additional shares; (e) any sale by a Principal Subsidiary Bank (or any successor
corporation thereto) of additional securities convertible into shares of its
capital stock to its shareholders at any price, so long as (i) prior to such
sale the Corporation owns, directly or indirectly, securities of the same class
and (ii) immediately after such sale the Corporation owns, directly or
indirectly, at least as great a percentage of each class of such securities
convertible into shares of capital stock of such Principal Subsidiary Bank as it
owned prior to such sale of additional securities; (f) any sale by a Principal
Subsidiary Bank (or any successor corporation thereto) of additional options,
warrants or rights to subscribe for or purchase shares of its capital stock to
its shareholders at any price, so long as (i) prior to such sale the Corporation
owns, directly or indirectly, options, warrants or rights, as the case may be,
of the same class and (ii) immediately after such sale, the Corporation owns,
directly or indirectly, at least as great a percentage of each class of such
options, warrants or rights, as the case may be, to subscribe for or purchase
shares of capital stock of such Principal Subsidiary Bank as it owned prior to
such sale of additional options, warrants or rights; or (g) any issuance of
shares of capital stock, or securities convertible into or options, warrants or
rights to subscribe for or purchase shares of capital stock, of a Principal
Subsidiary Bank or any subsidiary which owns shares of capital stock, or
securities convertible into or options,
17
<PAGE>
warrants or rights to acquire capital stock, of any Principal Subsidiary Bank,
to the Corporation or a wholly owned subsidiary of the Corporation.
A Principal Subsidiary Bank is defined in the Senior Indenture as any
Subsidiary Bank (other than NationsBank of Delaware, National Association) with
total assets equal to more than 10% of the Corporation's total consolidated
assets.
WAIVER OF COVENANTS
Under the terms of either Indenture, compliance with certain covenants or
conditions of such Indenture may be waived by the holders of a majority in
principal amount of the Debt Securities of all series to be affected thereby and
at the time outstanding under that Indenture (including, in the case of holders
of Senior Debt Securities, the covenant described above).
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Corporation and the
applicable Trustee to modify such Indenture or the rights of the holders of Debt
Securities or coupons, if any, thereunder, with the consent of the holders of
not less than 66 2/3% in aggregate principal amount of the Debt Securities of
all series at the time outstanding under that Indenture and to be affected
thereby (voting as one class), except that no such modification shall (a) extend
the fixed maturity of, reduce the principal amount or redemption premium, if
any, of, or reduce the rate of or extend the time of payment of interest on, any
Debt Security without the consent of the holder of each security so affected, or
(b) reduce the aforesaid percentage of Debt Securities, the consent of holders
of which is required for any such modification, without the consent of the
holders of all Debt Securities then outstanding under that Indenture. Each
Indenture also provides that the Corporation and the respective Trustee may,
from time to time, execute supplemental indentures in certain limited
circumstances without the consent of any holders of outstanding Debt Securities.
Each Indenture provides that in determining whether the holders of the
requisite principal amount of the Debt Securities outstanding have given any
request, demand, authorization, direction, notice, consent or waiver thereunder,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding shall be the amount of the principal thereof that would
be due and payable upon an event of default, and (ii) the principal amount of a
Debt Security denominated in a foreign currency or currency unit shall be the
U.S. dollar equivalent, determined on the date of original issuance of such Debt
Security.
MEETINGS AND ACTION BY SECURITYHOLDERS
Each Indenture contains provisions for convening meetings of the holders of
Debt Securities for certain purposes. A meeting may be called at any time by the
Trustee in its discretion and shall be called by the Trustee upon request by the
Corporation or the holders of at least 10% in aggregate principal amount of the
Debt Securities outstanding of such series, in any case upon notice given in
accordance with "Notices" below. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the applicable Indenture, or such other action taken in accordance with the
terms of the applicable Indenture, will be binding on all holders of Debt
Securities of that series and the related coupons.
DEFAULTS AND RIGHTS OF ACCELERATION
An Event of Default is defined in the Subordinated Indenture generally as
bankruptcy of the Corporation under Federal bankruptcy laws. An Event of Default
is defined in the Senior Indenture generally as (i) the Corporation's failure to
pay principal (or premium, if any) when due on any securities of a series, (ii)
the Corporation's failure to pay interest on any securities of a series, within
30 days after the same becomes due, (iii) the Corporation's breach of any of its
other covenants contained in the Senior Debt Securities or the Senior Indenture,
which breach is not cured within 90 days after written notice by the Senior
Trustee or by the holders of at least 25% in principal amount of the Senior Debt
Securities then outstanding under the Senior Indenture and affected thereby, and
(iv) certain events involving the bankruptcy, insolvency or liquidation of the
Corporation.
Each Indenture provides that if an Event of Default under the respective
Indenture occurs and is continuing, either the respective Trustee or the holders
of 25% in principal amount, or, if any such Debt Securities are Original Issue
Discount Debt Securities, such lesser amounts as may be described in an
applicable Prospectus
18
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Supplement, of the Debt Securities then outstanding under that Indenture (or,
with respect to an Event of Default under the Senior Indenture due to a default
in the payment of principal (or premium, if any) or interest or performance of
any other covenant, the outstanding Debt Securities of all series affected by
such default) may declare the principal amount of all of such Debt Securities to
be due and payable immediately. Payment of principal of the Subordinated Debt
Securities may not be accelerated in the case of a default in the payment of
principal (or premium, if any) or interest or the performance of any other
covenant of the Corporation. Upon certain conditions a declaration of an Event
of Default may be annulled and past defaults may be waived by the holders of a
majority in principal amount of the Debt Securities then outstanding (or of such
series affected, as the case may be).
COLLECTION OF INDEBTEDNESS, ETC.
Each Indenture also provides that in the event of a failure by the
Corporation to make payment of principal of or interest on the Debt Securities
(and, in the case of payment of interest, such failure to pay shall have
continued for 30 days), the Corporation will, upon demand of the respective
Trustee, pay to it, for the benefit of the holders of the Debt Securities and,
in the case of any Bearer Securities, the coupons, if any, appertaining thereto,
the amount then due and payable on the Debt Securities for principal and
interest, with interest on the overdue principal and, to the extent payment of
interest shall be legally enforceable, upon overdue installments of interest at
the rate borne by the Debt Securities. Each Indenture further provides that if
the Corporation fails to pay such amount forthwith upon such demand, the
respective Trustee may, among other things, institute a judicial proceeding for
the collection thereof. However, each Indenture provides that notwithstanding
any other provision of the Indenture, the holder of any Debt Security shall have
the right to institute suit for the enforcement of any payment of principal of
and interest on such Debt Security on the respective stated maturities expressed
in such Debt Security and that such right shall not be impaired without the
consent of such holder.
The holders of a majority in principal amount of the Debt Securities then
outstanding under an Indenture shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
under that Indenture, provided that the holders shall have offered to the
Trustee reasonable indemnity against expenses and liabilities. Each Indenture
requires the annual filing by the Corporation with the respective Trustee of a
certificate as to the absence of default and as to compliance with the terms of
that Indenture.
NOTICES
Except as otherwise provided in the applicable indenture, notices to
holders of Bearer Debt Securities will be given by publication at least twice in
a newspaper of general circulation, and customarily published at least once a
day for at least five days in each calendar week, in such city or cities as may
be specified in such Debt Securities. Notices to holders of Registered Debt
Securities will be given by first-class mail to the addresses of such holders as
they appear in the Security Register.
CONCERNING THE TRUSTEES
The Corporation and the Banks have from time to time maintained deposit
accounts and conducted other banking transactions with The Bank of New York and
BankAmerica National Trust Company and their affiliated entities in the ordinary
course of business. Each of the Trustees also serves as trustee for certain
series of the Corporation's outstanding indebtedness under other indentures.
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LEGAL OPINIONS
The legality of the Debt Securities will be passed upon for the Corporation
by Smith Helms Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the
underwriters or agents by Stroock & Stroock & Lavan, New York, New York. As of
the date of this Prospectus, certain members of Smith Helms Mulliss & Moore,
L.L.P. beneficially own approximately 25,000 shares of the Corporation's Common
Stock.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1993, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE
HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE
IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PROSPECTUS PAGE
<S> <C>
Incorporation of Certain Documents by
Reference.................................... 2
Available Information.......................... 2
NationsBank Corporation........................ 3
Supervision and Regulation..................... 4
Use of Proceeds................................ 6
Ratios of Earnings to Fixed Charges............ 6
Plan of Distribution........................... 7
Description of Debt Securities................. 8
Legal Opinions................................. 20
Experts........................................ 20
</TABLE>
$3,000,000,000
NationsBank (Register mark)
DEBT SECURITIES
PROSPECTUS
, 1995
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 1, 1995
[EQUITY]
PROSPECTUS
NATIONSBANK(Register mark)
Preferred Stock
Common Stock
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time shares of its preferred stock (the "Preferred Stock"), which may be
represented by depositary shares (the "Depositary Shares"), and shares of its
common stock (the "Common Stock" and, together with the Preferred Stock and the
Depositary Shares, the "Securities"). NationsBank may sell up to $3,000,000,000
in aggregate initial offering price of the Securities, which may be offered,
separately or together, in one or more series, in amounts, at prices and on
terms to be determined at the time of sale and set forth in one or more
supplements to this Prospectus (a "Prospectus Supplement"). Pursuant to the
terms of the Registration Statement of which this Prospectus constitutes a part,
NationsBank may also offer and sell its unsecured debt securities, which may be
either senior or subordinated (the "Debt Securities"). Any such Debt Securities
will be offered and issued pursuant to the terms of a separate Prospectus
contained in such Registration Statement. The aggregate amount of Securities
that may be offered and sold pursuant hereto is subject to reduction as the
result of the sale of any Debt Securities pursuant to such separate Prospectus.
The applicable Prospectus Supplement will set forth the specific terms of
Securities offered pursuant to this Prospectus, including: (a) in the case of
any series of Preferred Stock, the specific designation, the aggregate number of
shares offered, the dividend rate or method of calculation, the dividend period
and dividend payment dates, whether such dividends will be cumulative or
noncumulative, the liquidation preference, voting rights, if any, any terms for
redemption at the option of the holder or NationsBank, any applicable conversion
provisions in the event that such series is convertible at the option of the
holder or NationsBank into shares of Common Stock, and any other terms of the
offering or the series, and (b) in the case of Common Stock, the aggregate
number of shares offered.
The Securities may be sold (i) through underwriting syndicates represented
by managing underwriters, or by underwriters without a syndicate, with such
underwriters to be designated at the time of sale; (ii) through agents
designated from time to time; or (iii) directly by the Corporation. The names of
any underwriters or agents of NationsBank involved in the sale of the
Securities, and any applicable commissions or discounts, will be set forth in
the applicable Prospectus Supplement, in addition to any other terms of the
offering of such Securities. The net proceeds to the Corporation from such sale
also will be set forth in such Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE
OF NATIONSBANK, AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC") OR
ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER 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 , 1995.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated herein by reference:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994;
(c) The Corporation's Current Reports on Form 8-K filed February 24,
1993, as subsequently amended; October 8, 1993, as subsequently amended;
August 4, 1994; September 21, 1994; October 3, 1994; December 22, 1994; and
January 26, 1995; and
(d) The description of the Corporation's Common Stock contained in its
registration statement filed pursuant to Section 12 of the 1934 Act, and
any amendment or report filed for the purpose of updating such description,
including the Corporation's Current Report on Form 8-K filed on September
21, 1994.
All reports and any definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby 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 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
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO JOHN
E. MACK, SENIOR VICE PRESIDENT AND TREASURER, NATIONSBANK CORPORATION,
NATIONSBANK CORPORATE CENTER, CORPORATE TREASURY DIVISION, CHARLOTTE, NORTH
CAROLINA 28255. TELEPHONE REQUESTS MAY BE DIRECTED TO (704) 386-5972.
AVAILABLE INFORMATION
NationsBank is subject to the informational requirements of the 1934 Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, 13th Floor, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, upon payment of prescribed rates. In addition, reports,
proxy statements and other information concerning NationsBank may be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and at the offices of The Pacific Stock Exchange, Incorporated,
301 Pine Street, San Francisco, California 94104.
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<PAGE>
NATIONSBANK CORPORATION
GENERAL
NationsBank is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), with its principal assets being
the stock of its banking and non-banking subsidiaries. Through its banking
subsidiaries (the "Banks") and its various non-banking subsidiaries, NationsBank
provides banking and banking-related services, primarily throughout the
Southeast and Mid-Atlantic States and Texas. The principal executive offices of
NationsBank are located at NationsBank Corporate Center, Charlotte, North
Carolina 28255. Its telephone number is (704) 386-5000.
OPERATIONS
NationsBank provides a diversified range of banking and certain non-banking
financial services to its customers through the General Bank, the Institutional
Group and the Financial Services unit. The General Bank provides comprehensive
service in the commercial and retail banking fields, including Trust and Private
Banking operations, the origination and servicing of home mortgage loans, the
issuance and servicing of credit cards and certain insurance services. The
General Bank also offers full service brokerage services and discount brokerage
services for its customers through subsidiaries of NationsBank.
The Institutional Group provides to domestic and international customers
comprehensive corporate banking and investment banking services, including
loan syndication, treasury management, and leasing; underwriting, trading or
distributing a wide range of securities (including bank-eligible securities and,
to a limited extent, bank-ineligible securities as authorized by the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board") under
Section 20 of the Glass-Steagall Act); options, futures, forwards and swaps
on certain interest rate and commodity products, and spot and forward foreign
exchange contracts. The Institutional Group provides its services through
various domestic offices as well as offices located in London, Frankfurt,
Singapore, Mexico City, Grand Cayman, Nassau, Tokyo, and Osaka.
NationsBank currently has banking operations in the following jurisdictions
(with the approximate number of banking offices as of December 31, 1994 in
parentheses): District of Columbia (34); Florida (392); Georgia (197); Kentucky
(4); Maryland (236); North Carolina (233); South Carolina (177); Tennessee
(104); Texas (281); and Virginia (246). NationsBank also has a banking
subsidiary in Delaware that issues and services credit cards. In addition to the
banking offices located in the above states, the various Banks have loan
production offices located in New York City, Chicago, Los Angeles, Denver and
Birmingham. The Banks also provide fully automated, 24-hour cash dispensing and
depositing services throughout the states in which they are located, through
approximately 2,100 automated teller machines.
The Financial Services unit consists of NationsCredit Corporation, a
consumer finance subsidiary, and Greyrock Capital Group Inc. (formerly named
Nations Financial Capital Corporation), a commercial finance subsidiary.
NationsCredit Corporation provides consumer and retail loan programs and also
offers inventory financing to manufacturers, importers and distributors; it has
approximately 240 offices located in 32 states. Greyrock Capital Group Inc.
meets the specialized capitalization, leasing, debt restructuring and
acquisition needs of small to large corporations; it also provides consumer
loans secured by automobiles and real estate.
As part of its operations, NationsBank regularly evaluates its lines of
business and from time to time may increase, decrease or terminate any of its
activities as the result of such evaluations. In particular, the Corporation
regularly evaluates the potential acquisition of, and holds discussions with,
various financial institutions and other businesses of a type eligible for bank
holding company investment. In addition, NationsBank regularly analyzes the
values of, and submits bids for, the acquisition of customer-based funds and
other liabilities and assets of such financial institutions and other
businesses. As a general rule, NationsBank publicly announces such material
acquisitions when a definitive agreement has been reached.
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<PAGE>
SUPERVISION AND REGULATION
GENERAL
As a registered bank holding company, NationsBank is subject to the
supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which are subject to
regulation, supervision and examination by the Office of the Comptroller of the
Currency (the "Comptroller"). The Banks are also subject to regulation by the
FDIC and other federal regulatory agencies. In addition to banking laws,
regulations and regulatory agencies, NationsBank and its subsidiaries and
affiliates are subject to various other laws and regulations and supervision and
examination by other regulatory agencies, all of which directly or indirectly
affect the operations and management of NationsBank and its ability to make
distributions. The following discussion summarizes certain aspects of those laws
and regulations that affect NationsBank.
Under the BHCA, the activities of NationsBank, and those of companies which
it controls or in which it holds more than 5% of the voting stock, are limited
to banking or managing or controlling banks or furnishing services to or
performing services for its subsidiaries, or any other activity which the
Federal Reserve Board determines to be so closely related to banking or managing
or controlling banks as to be a proper incident thereto. In making such
determinations, the Federal Reserve Board is required to consider whether the
performance of such activities by a bank holding company or its subsidiaries can
reasonably be expected to produce benefits to the public such as greater
convenience, increased competition or gains in efficiency that outweigh possible
adverse effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest or unsound banking practices. Generally, bank
holding companies, such as NationsBank, are required to obtain prior approval of
the Federal Reserve Board to engage in any new activity not previously approved
by the Federal Reserve Board or to acquire more than 5% of any class of voting
stock of any company.
The BHCA also requires bank holding companies to obtain the prior approval
of the Federal Reserve Board before acquiring more than 5% of any class of
voting stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding company
will be able to acquire banks in states other than its home state beginning
September 29, 1995. Until such provisions are effective, interstate acquisitions
by bank holding companies will be subject to current Federal law, which provides
that no application to acquire shares of a bank located outside of North
Carolina (the state in which the operations of the Banks were principally
conducted on the date the Corporation became subject to the BHCA) may be
approved by the Federal Reserve Board unless such acquisition is specifically
authorized by the laws of the state in which the bank whose shares are to be
acquired is located.
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, thereby creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity either to "opt out"
of this provision, thereby prohibiting interstate branching in such states, or
to "opt in" at an earlier time, thereby allowing interstate branching within
that state prior to June 1, 1997. Furthermore, pursuant to such Act, a bank is
now able to open new branches in a state in which it does not already have
banking operations, if the laws of such state permit such DE NOVO branching.
As previously described, NationsBank regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. The likelihood and timing of any such changes
and the impact such changes might have on NationsBank and its subsidiaries,
however, cannot be determined at this time.
CAPITAL AND OPERATIONAL REQUIREMENTS
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, those regulatory agencies may
from time to time require that a banking organization maintain capital above the
minimum levels, whether because of its financial condition or actual or
anticipated growth.
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<PAGE>
The Federal Reserve Board risk-based guidelines define a two-tier capital
framework. Tier 1 capital consists of common and qualifying preferred
shareholders' equity, less certain intangibles and other adjustments. Tier 2
capital consists of subordinated and other qualifying debt, and the allowance
for credit losses up to 1.25 percent of risk-weighted assets. The sum of Tier 1
and Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50 percent of which must consist of Tier 1
capital. Risk-based capital ratios are calculated by dividing Tier 1 and total
capital by risk-weighted assets. Assets and off-balance sheet exposures are
assigned to one of four categories of risk-weights, based primarily on relative
credit risk. The minimum Tier 1 capital ratio is 4 percent and the minimum total
capital ratio is 8 percent. The Corporation's Tier 1 and total risk-based
capital ratios under these guidelines at December 31, 1994 were 7.43 percent and
11.47 percent, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
total assets. Although the stated minimum ratio is 3 percent, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3 percent. The Corporation's leverage ratio at December 31, 1994
was 6.18 percent. Management believes that NationsBank meets its leverage ratio
requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent's general unsecured creditors. In addition, FDICIA requires the
various regulatory agencies to prescribe certain non-capital standards for
safety and soundness relating generally to operations and management, asset
quality and executive compensation and permits regulatory action against a
financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6 percent, a total capital ratio of at
least 10 percent and a leverage ratio of at least 5 percent and not be subject
to a capital directive order. An "adequately capitalized " institution must have
a Tier 1 capital ratio of at least 4 percent, a total capital ratio of at least
8 percent and a leverage ratio of at least 4 percent, or 3 percent in some
cases. Under these guidelines, each of the Banks is considered adequately or
well capitalized.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. That
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have proposed amendments to
existing risk-based capital regulations to provide for the consideration of
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position) in the determination of a bank's minimum capital
requirements. Those proposals, while still under consideration, would require
banks with interest rate risk in excess of defined thresholds to maintain
additional capital beyond that generally required.
DISTRIBUTIONS
The Corporation's funds for cash distributions to its shareholders are
derived from a variety of sources, including cash and temporary investments. The
primary source of such funds, however, is dividends received from its banking
subsidiaries. The amount of dividends that each Bank may declare in a calendar
year without
5
<PAGE>
approval of the Comptroller is the Bank's net profits for that year, as defined
by statute, combined with its net retained profits, as defined, for the
preceding two years. In addition, from time to time NationsBank applies for, and
may receive, permission from the Comptroller for one or more of the Banks to
declare special dividends. In 1995, the Banks can initiate dividend payments,
without prior regulatory approval, of up to $1.0 billion plus an additional
amount equal to their net profits for 1995 up to the date of any such dividend
declaration.
In addition to the foregoing, the ability of NationsBank and the Banks to
pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of NationsBank, its shareholders and its creditors
to participate in any distribution of the assets or earnings of its subsidiaries
is further subject to the prior claims of creditors of the respective
subsidiaries.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies are
expected to act as a source of financial strength to each subsidiary bank and to
commit resources to support each such subsidiary. This support may be required
at times when a bank holding company may not be able to provide such support. In
the event of a loss suffered or anticipated by the FDIC -- either as a result of
default of a banking or thrift subsidiary of NationsBank or related to FDIC
assistance provided to a subsidiary in danger of default -- the other banking
subsidiaries of NationsBank may be assessed for the FDIC's loss, subject to
certain exceptions.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, including the Corporation's working capital needs, the
funding of investments in, or extensions of credit to, its banking and
nonbanking subsidiaries, possible acquisitions of other financial institutions
or their assets or liabilities, possible acquisitions of or investments in other
businesses of a type eligible for bank holding companies and possible reduction
of outstanding indebtedness or repurchase of outstanding equity securities of
the Corporation. Pending such use, the Corporation may temporarily invest the
net proceeds in investment grade securities. The Corporation may, from time to
time, engage in additional capital financings of a character and in amounts to
be determined by the Corporation in light of its needs at such time or times and
in light of prevailing market conditions. If the Corporation elects at the time
of issuance of Securities to make different or more specific use of proceeds
other than that set forth herein, such use will be described in the applicable
Prospectus Supplement.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following are the consolidated ratios of earnings to combined fixed
charges and preferred stock dividend requirements for each of the years in the
five-year period ended December 31, 1994:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1994 1993 1992 1991 (1) 1990
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends:
Excluding interest on deposits.................................................... 1.8 2.3 2.3 1.1 1.3
Including interest on deposits.................................................... 1.5 1.5 1.4 1.0 1.1
</TABLE>
(1) Ratios include the 1991 restructuring expense of $330 million recorded in
connection with the merger of a subsidiary of the Corporation into
C&S/Sovran Corporation, effective December 31, 1991. On a pro forma basis,
excluding the 1991 restructuring expense of $330 million, the Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends excluding
interest on deposits was 1.3, and the Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends including interest on deposits was
1.1.
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<PAGE>
For purposes of computing the consolidated ratios, earnings represent net
income of the Corporation plus applicable income taxes and fixed charges, less
capitalized interest and the equity in undistributed earnings of unconsolidated
subsidiaries and associated companies. Fixed charges represent interest expense
(exclusive of interest on deposits in one case and inclusive of such interest in
the other), capitalized interest, amortization of debt discount and appropriate
issuance costs and one-third (the amount deemed to represent an appropriate
interest factor) of net rent expense under all lease commitments. Preferred
stock dividend requirements represent dividend requirements on the outstanding
preferred stock adjusted to reflect the pre-tax earnings that would be required
to cover such dividend requirements.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Securities in one or more of the
following ways: (i) through underwriters or dealers; (ii) through agents; or
(iii) directly by the Corporation to one or more purchasers. Such underwriters,
dealers or agents may be affiliates of NationsBank. The Prospectus Supplement
with respect to a particular offering of any Securities will set forth the terms
of the offering of such Securities, including the name or names of any
underwriters or agents with whom NationsBank has entered into arrangements with
respect to the sale of such Securities, the public offering or purchase price of
such Securities and the proceeds to the Corporation from such sales, and any
underwriting discounts, agency fees or commissions and other items constituting
underwriters' compensation, the initial public offering price, any discounts or
concessions to be allowed or reallowed or paid to dealers and the securities
exchange, if any, on which such Securities may be listed.
If underwriters are used in the offer and sale of Securities, the
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters, or by underwriters
without a syndicate, all of which underwriters in either case will be designated
in the applicable Prospectus Supplement. Unless otherwise set forth in the
applicable Prospectus Supplement, under the terms of the underwriting agreement,
the obligations of the underwriters to purchase Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Securities if any are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may be offered and sold directly by the Corporation or through
agents designated by the Corporation from time to time. Any agent involved in
the offer or sale of the Securities with respect to which this Prospectus is
delivered will be named in, and any commissions payable by the Corporation to
such agent will be set forth in or calculable from, the applicable Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best-efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Corporation
may authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Securities from the Corporation at the public offering
price set forth in such Prospectus Supplement pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") providing for payment and delivery on
the date or dates stated in the Prospectus Supplement. Each Delayed Delivery
Contract will be for an amount of Securities not less than and, unless the
Corporation otherwise agrees, the aggregate amount of Securities sold pursuant
to Delayed Delivery Contracts shall be not more than the respective minimum and
maximum amounts stated in the Prospectus Supplement. Institutions with which
Delayed Delivery Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions, but shall in all cases be subject to
the approval of the Corporation in its sole discretion. The obligations of the
purchaser under any Delayed Delivery Contract to pay for and take delivery of
Securities will not be subject to any conditions except that (i) the purchase of
Securities by such institution shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such institution is subject; and
(ii) any related sale of Securities to underwriters shall have occurred. A
commission set forth in the Prospectus Supplement will be paid to underwriters
soliciting purchases of Securities pursuant to Delayed Delivery Contracts
accepted by the Corporation. The underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts.
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<PAGE>
Any series of Preferred Stock offered and sold pursuant to this Prospectus
and the applicable Prospectus Supplement will be new issues of securities with
no established trading market. Any underwriters to whom such Securities are sold
by the Corporation for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Any underwriter, dealer or agent participating in the distribution of any
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, as amended (the "1933 Act"), of the Securities so
offered and sold, and any discounts or commissions received by them from
NationsBank and any profit realized by them on the sale or resale of the
Securities may be deemed to be underwriting discounts and commissions under the
1933 Act.
Under agreements entered into with the Corporation, underwriters, dealers
and agents may be entitled to indemnification by the Corporation against certain
civil liabilities, including liabilities under the 1933 Act, or to contribution
with respect to payments which the underwriters or agents may be required to
make in respect thereof.
The participation of an affiliate or subsidiary of NationsBank in the offer
and sale of the Securities will comply with the requirements of Schedule E to
the By-laws of the National Association of Securities Dealers, Inc. (the "NASD")
regarding the participation in a distribution of securities by an affiliate. No
NASD member participating in offers and sales of the Securities will execute a
transaction in the Securities in a discretionary account without the prior
written specific approval of the member's customer.
This Prospectus and related Prospectus Supplements also may be used by
direct or indirect wholly owned subsidiaries of NationsBank in connection with
offers and sales related to secondary market transactions in the Securities.
Such subsidiaries may act as principal or agent in such transactions. Any such
sales will be made at prices related to prevailing market prices at the time of
sale.
Underwriters, dealers and agents also may be customers of, engage in
transactions with, or perform other services for the Corporation in the ordinary
course of business.
DESCRIPTION OF PREFERRED STOCK
GENERAL
NationsBank has authorized 45,000,000 shares of preferred stock and may
issue such preferred stock in one or more series, each with such preferences,
limitations, designations, conversion rights, voting rights, dividend rights,
voluntary and involuntary liquidation rights and other rights as it may
determine. NationsBank has designated 3,000,000 shares of ESOP Convertible
Preferred Stock, Series C (the "ESOP Preferred Stock"), of which 2,606,657
shares were issued and outstanding as of December 31, 1994.
The ability of NationsBank to pay dividends with respect to its preferred
stock or other capital stock may be affected by the ability of the Banks to pay
dividends. The ability of the Banks, as well as of the Corporation, to pay
dividends in the future currently is, and could be further, influenced by bank
regulatory requirements and capital guidelines. See "SUPERVISION AND
REGULATION."
THE PREFERRED STOCK
GENERAL. The Preferred Stock shall have the general dividend, voting and
liquidation preference rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock offered
thereby. Reference is made to the applicable Prospectus Supplement for specific
terms, including, where applicable: (i) the title and stated value of such
Preferred Stock; (ii) the aggregate number of shares of Preferred Stock so
offered; (iii) the price at which such Preferred Stock will be issued; (iv) the
dividend rates or method of calculation, the dividend period and the dates on
which dividends shall be payable; (v) whether any such dividends will be
cumulative or noncumulative, and if cumulative, the date from which dividends
shall commence to cumulate; (vi) the dates on which the Preferred Stock will be
subject to redemption at the option of the Corporation, if applicable, and any
related redemption terms; (vii) any mandatory redemption or sinking fund
provisions; (viii) any rights on the part of the holder to convert the Preferred
Stock into shares of Common Stock; and (ix) any additional voting, liquidation,
preemptive and other rights, preferences, privileges,
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<PAGE>
limitations and restrictions. The description of certain provisions of the
Preferred Stock set forth below and in the applicable Prospectus Supplement does
not purport to be complete and is subject to and qualified in its entirety by
reference to the Articles of Amendment to the Articles of Incorporation of the
Corporation relating to the particular series of Preferred Stock, which will be
filed with the Commission at or prior to the time of sale of such Preferred
Stock.
NationsBank may, at its option, elect to offer Depositary Shares evidenced
by depositary receipts (the "Depositary Receipts"), each representing a
fractional interest (to be specified in the Prospectus Supplement relating to
the particular series of Preferred Stock) in a share of a particular series of
the Preferred Stock issued and deposited with a Depositary (as defined below).
See "DESCRIPTION OF DEPOSITARY SHARES" below.
As to the payment of dividends and the distribution of assets on
liquidation, dissolution and winding up of the Corporation, the Preferred Stock
ranks senior to the Common Stock. The dividend and liquidation preference rights
of the Preferred Stock relative to the ESOP Preferred Stock or any future series
of preferred stock of the Corporation shall be set forth in the Prospectus
Supplement relating to the particular series of Preferred Stock offered thereby.
When issued in accordance with the terms of the Prospectus and the
applicable Prospectus Supplement, the Preferred Stock will be validly issued,
fully paid and nonassessable.
DIVIDENDS. When and as declared by the Board of Directors of the
Corporation, holders of the Preferred Stock will be entitled to receive
quarterly cash dividends at such rates and on such dates as will be set forth in
the applicable Prospectus Supplement. All dividends shall be paid out of funds
of NationsBank legally available for such purpose. Except as otherwise set forth
in the applicable Prospectus Supplement, no dividends shall be paid on other
shares of the Corporation, nor shall any shares of other capital stock of the
Corporation be redeemed, repurchased or otherwise acquired for any consideration
(or any moneys be paid into a sinking fund for the redemption of shares of such
stock) by the Corporation, if dividends on any series of Preferred Stock are in
arrears.
VOTING. Except as required by applicable law or as otherwise set forth in
the applicable Prospectus Supplement, the holders of Preferred Stock shall have
no voting rights with regard to matters submitted to a general vote of the
shareholders of the Corporation.
LIQUIDATION PREFERENCE. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, the holders of
any series of Preferred Stock shall be entitled to receive, by reason of their
ownership thereof, after distributions to holders of any series or class of
capital stock of the Corporation as may be set forth in the applicable
Prospectus Supplement, an amount equal to the appropriate stated or liquidation
value of the shares of such series (as set forth in the applicable Prospectus
Supplement), plus an amount equal to accrued and unpaid dividends, if any,
through the date of such payment. If upon the occurrence of such event, the
assets and funds to be thus distributed among the holders of such Preferred
Stock shall be insufficient to permit the payment to such holders of the full
amount due, then the holders of such Preferred Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the respective
amounts which otherwise would be payable with respect to the shares held by them
upon such distribution if all amounts payable on or with respect to such shares
were paid in full.
THE FOLLOWING SUMMARY OF THE ESOP PREFERRED STOCK IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE DESCRIPTION OF SUCH SERIES OF PREFERRED STOCK
CONTAINED IN THE CORPORATION'S RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
ATTACHED AS EXHIBIT 3(I) TO THE CORPORATION'S QUARTERLY REPORT ON FORM 10-Q FOR
THE QUARTER ENDED JUNE 30, 1994, INCORPORATED HEREIN BY REFERENCE.
ESOP PREFERRED STOCK
The ESOP Preferred Stock was first issued in the transaction by which
NationsBank was formed from the merger of NCNB Corporation and C&S/Sovran
Corporation in 1991 upon the conversion of shares of ESOP Convertible Preferred
Stock, Series C of C&S/Sovran Corporation. All shares are held by the trustee
under the NationsBank Corporation Retirement Savings Plan (the "ESOP").
9
<PAGE>
Shares of ESOP Preferred Stock have no preemptive or preferential rights to
purchase or subscribe for shares of NationsBank capital stock of any class and
are not subject to any sinking fund or other obligation of NationsBank to
repurchase or retire the series, except as discussed below.
Each share of ESOP Preferred Stock is entitled to an annual dividend,
subject to certain adjustments, of $3.30 per share, payable semiannually. Unpaid
dividends accumulate as of the date on which they first became payable, without
interest. So long as any shares of ESOP Preferred Stock are outstanding, no
dividend may be declared, paid or set apart for payment on any other series of
stock ranking on a parity with the ESOP Preferred Stock as to dividends, unless
like dividends have been declared and paid, or set apart for payment, on the
ESOP Preferred Stock for all dividend payment periods ending on or before the
dividend payment date for such parity stock, ratably in proportion to their
respective amounts of accumulated and unpaid dividends. NationsBank generally
may not declare, pay or set apart for payment any dividends (except for, among
other things, dividends payable solely in shares of stock ranking junior to the
ESOP Preferred Stock as to dividends or upon liquidation) on, make any other
distribution on, or make payment on account of the purchase, redemption or other
retirement of, any other class or series of NationsBank capital stock ranking
junior to the ESOP Preferred Stock as to dividends or upon liquidation, until
full cumulative dividends on the ESOP Preferred Stock have been declared and
paid or set apart for payment when due.
The holder of the ESOP Preferred Stock is entitled to vote on all matters
submitted to a vote of the holders of Common Stock and votes together with the
holders of Common Stock as one class. Except as otherwise required by applicable
law, the holder of the ESOP Preferred Stock has no special voting rights. To the
extent that the holder of such shares is entitled to vote, each share is
entitled to the number of votes equal to the number of shares of Common Stock
into which such share of ESOP Preferred Stock could be converted on the record
date for determining the shareholders entitled to vote, rounded to the nearest
whole vote.
Shares of the ESOP Preferred Stock initially are convertible into Common
Stock at a conversion rate equal to 0.84 shares of Common Stock per share of
ESOP Preferred Stock and a conversion price of $42.50 per 0.84 shares of Common
Stock, subject to certain customary anti-dilution adjustments.
In the event of any voluntary or involuntary dissolution, liquidation or
winding-up of NationsBank, the holder of the ESOP Preferred Stock will be
entitled to receive out of the assets of NationsBank available for distribution
to shareholders, subject to the rights of the holders of any Preferred Stock
ranking senior to or on a parity with the ESOP Preferred Stock as to
distributions upon liquidation, dissolution or winding-up but before any amount
will be paid or distributed among the holders of Common Stock or any other
shares ranking junior to the ESOP Preferred Stock as to such distributions,
liquidating distributions of $42.50 per share plus all accrued and unpaid
dividends thereon to the date fixed for distribution. If, upon any voluntary or
involuntary dissolution, liquidation or winding-up of NationsBank, the amounts
payable with respect to the ESOP Preferred Stock and any other stock ranking on
a parity therewith as to any such distribution are not paid in full, the holder
of the ESOP Preferred Stock and such other stock will share ratably in any
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which it is entitled, the holder of the ESOP Preferred Stock
will not be entitled to any further distribution of assets by NationsBank.
Neither a merger or consolidation of NationsBank with or into any other
corporation, nor a merger or consolidation of any other corporation with or into
NationsBank nor a sale, transfer or lease of all or any portion of NationsBank's
assets, will be deemed to be a dissolution, liquidation or winding-up of
NationsBank.
The ESOP Preferred Stock is redeemable, in whole or in part, at the option
of NationsBank, at any time. The redemption price for the shares of the ESOP
Preferred Stock will depend upon the time of redemption. Specifically, the
redemption price for the 12-month period beginning July 1, 1994, is $44.15 per
share; on each succeeding July 1, the redemption price will be reduced by $.33
per share, except that on and after July 1, 1999, the redemption price will be
$42.50 per share, and the redemption price may be paid in cash or shares of
Common Stock. In each case, the redemption price also must include all accrued
and unpaid dividends to the date of redemption. To the extent that the ESOP
Preferred Stock is treated as Tier 1 capital for bank regulatory purposes, the
approval of the Federal Reserve Board may be required for redemption of the ESOP
Preferred Stock.
NationsBank is required to redeem shares of the ESOP Preferred Stock at the
option of the holder of such shares to the extent necessary either to provide
for distributions required to be made under the ESOP or to make payments of
principal, interest or premium due and payable on any indebtedness incurred by
the holder
10
<PAGE>
of the shares. The redemption price in such case will be the greater of $42.50
per share plus accrued and unpaid dividends to the date of redemption or the
fair market value of the aggregate number of shares of Common Stock into which a
share of ESOP Preferred Stock then is convertible.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
NationsBank may, at its option, elect to offer fractional interests in the
Preferred Stock, rather than whole shares of such securities. In the event such
option is exercised, NationsBank will provide for the issuance by a Depositary
to the public of receipts of Depositary Shares, each of which will represent a
fractional interest in a share of a particular series of the Preferred Stock, as
set forth in the Prospectus Supplement for such series of Preferred Stock.
Certain general terms and provisions of the Deposit Agreement (as described
below), Depositary Shares and the Depositary Receipts to which a Prospectus
Supplement may relate are set forth below. The particular terms of the Preferred
Stock offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Depositary Shares will be described in the
applicable Prospectus Supplement. The descriptions below and in any Prospectus
Supplement do not purport to be complete and are subject to and qualified in
their entirety by reference to the Deposit Agreement and the Depositary
Receipts, the forms of which are incorporated by reference in the Registration
Statement of which this Prospectus is a part and the definitive forms of which
will be filed with the Commission at the time of sale of such Depositary Shares.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between NationsBank and a bank or trust company selected by
NationsBank having its principal office in the United States and having a
combined capital and surplus of at least $5,000,000 (the "Depositary"). The
applicable Prospectus Supplement will set forth the name and address of the
Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary Share, to all
the rights and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion and liquidation
rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Depositary Receipts will be distributed to
those persons purchasing the fractional shares of the related series of
Preferred Stock in accordance with the terms of the offering as described in the
applicable Prospectus Supplement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of NationsBank, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at NationsBank's expense.
Upon the surrender of Depositary Receipts at the office of the Depositary
(unless the Depositary Shares have been previously called for redemption) and
upon payment by the holder of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Depositary deliver to such holder the number of whole shares of the
Preferred Stock underlying the Depositary Shares evidenced by the surrendered
Depositary Receipts; PROVIDED, HOWEVER, that holder of such shares of such
Preferred Stock will not thereafter be entitled to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of the related series of Preferred Stock to be
withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
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<PAGE>
number of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
NationsBank, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 45 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever NationsBank redeems Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of Depositary Shares relating to the Preferred Stock so redeemed. If less than
all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holder of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock held by the Depositary are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of Preferred Stock underlying such
Depositary Shares in accordance with such instructions, and NationsBank will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from voting
Preferred Stock to the extent it does not receive specific instructions from the
holders of Depositary Shares relating to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between NationsBank and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority in interest of the Depositary Shares then
outstanding. A Deposit Agreement may be terminated by NationsBank or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock underlying such Depositary Shares in connection with any
liquidation, dissolution or winding up of NationsBank.
CHARGES OF DEPOSITARY
NationsBank will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. NationsBank
will pay charges of the Depositary in connection with the
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initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from NationsBank which are delivered to the Depositary and
which NationsBank is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor NationsBank will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of NationsBank and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and neither entity will be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. Each entity may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to NationsBank notice
of its election to do so, and NationsBank may at any time remove the Depositary,
any such resignation or removal to take effect only upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $5,000,000.
DESCRIPTION OF COMMON STOCK
THE FOLLOWING SUMMARY OF THE COMMON STOCK IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE DESCRIPTION OF THE COMMON STOCK CONTAINED IN THE CORPORATION'S
CURRENT REPORT ON FORM 8-K FILED SEPTEMBER 21, 1994, INCORPORATED HEREIN BY
REFERENCE.
GENERAL
NationsBank is authorized to issue 800,000,000 shares of its Common Stock,
of which 276,451,552 shares were outstanding as of December 31, 1994. The Common
Stock is traded on the New York Stock Exchange, Inc. and on The Pacific Stock
Exchange Incorporated under the symbol "NB"; certain shares of Common Stock are
also listed and traded on the Tokyo Stock Exchange. As of December 31, 1994, a
total of 13,726,925 additional shares were reserved for issuance in connection
with various employee benefit plans of NationsBank and the conversion of the
ESOP Preferred Stock and a total of 3,456,499 additional shares were reserved
for issuance under the Corporation's Dividend Reinvestment and Stock Purchase
Plan. After taking into account the shares reserved as described above, the
number of authorized shares of the Common Stock available for other corporate
purposes as of December 31, 1994 was 506,365,024.
VOTING AND OTHER RIGHTS
The holders of the Common Stock are entitled to one vote per share, and, in
general, a majority of votes cast with respect to a matter is sufficient to take
action upon routine matters. Directors are elected by a plurality of the votes
cast, and each shareholder entitled to vote in such election shall be entitled
to vote each share of stock for as many persons as there are directors to be
elected. In elections for directors, such shareholders do not have the right to
cumulate their votes, so long as the Corporation has a class of shares
registered under Section 12 of the 1934 Act (unless action is taken to provide
otherwise by charter amendment, which action management does not currently
intend to propose). In general, (i) amendments to the Corporation's Restated
Articles of Incorporation must be approved by each voting group entitled to vote
separately thereon by a majority of the votes cast by that voting group, unless
the amendment creates dissenters' rights for a particular voting group, in which
case such amendment must be approved by a majority of the votes entitled to be
cast by such voting group; (ii) a merger or share exchange required to be
approved by shareholders must be approved
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by each voting group entitled to vote separately thereon by a majority of the
votes entitled to be cast by that voting group; and (iii) the dissolution of the
Corporation, or the sale of all or substantially all of the property of the
Corporation other than in the usual and regular course of business, must be
approved by a majority of all votes entitled to be cast thereon.
In the event of liquidation, holders of the Common Stock would be entitled
to receive pro rata any assets legally available for distribution to
shareholders with respect to shares held by them, subject to any prior rights of
any preferred stock then outstanding. See "DESCRIPTION OF PREFERRED STOCK"
above.
The Common Stock does not have any preemptive rights, redemption
privileges, sinking fund privileges, or conversion rights. All the outstanding
shares of the Common Stock are, and upon proper conversion of any Preferred
Stock all of the shares of Common Stock into which such shares are converted
will be, validly issued, fully paid and nonassessable.
Chemical Bank acts as transfer agent and registrar for the Common Stock.
DISTRIBUTIONS
The holders of the Common Stock are entitled to receive such dividends or
distributions as the Board of Directors of the Corporation may declare out of
funds legally available for such payments. The payment of distributions by
NationsBank is subject to the restrictions of North Carolina law applicable to
the declaration of distributions by a business corporation. A corporation
generally may not authorize and make distributions if, after giving effect
thereto, it would be unable to meet its debts as they become due in the usual
course of business or if the corporation's total assets would be less than the
sum of its total liabilities plus the amount that would be needed, if it were to
be dissolved at the time of distribution, to satisfy claims upon dissolution of
shareholders who have preferential rights superior to the rights of the holders
of its common stock. In addition, the payment of distributions to shareholders
is subject to any prior rights of outstanding preferred stock, including the
ESOP Preferred Stock and any other Preferred Stock when and if issued from time
to time. See "DESCRIPTION OF PREFERRED STOCK." Share dividends, if any are
declared, may be paid from NationsBank's authorized but unissued shares.
The ability of NationsBank to pay dividends is affected by the ability of
the Banks to pay dividends. The ability of the Banks, as well as of the
Corporation, to pay dividends in the future currently is, and could be further,
influenced by bank regulatory requirements and capital guidelines. See
"SUPERVISION AND REGULATION."
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Corporation by
Smith Helms Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the
underwriters or agents by Stroock & Stroock & Lavan, New York, New York. As of
the date of this Prospectus, certain members of Smith Helms Mulliss & Moore,
L.L.P., beneficially own approximately 25,000 shares of the Corporation's Common
Stock.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1993, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE
HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE
IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PROSPECTUS
Incorporation of Certain Documents by
Reference................................... 2
Available Information......................... 2
NationsBank Corporation....................... 3
Supervision and Regulation.................... 4
Use of Proceeds............................... 6
Ratios of Earnings to Combined Fixed Charges
and Preferred Stock Dividends............... 6
Plan of Distribution.......................... 7
Description of Preferred Stock................ 8
Description of Depositary Shares.............. 11
Description of Common Stock................... 13
Legal Opinions................................ 14
Experts....................................... 14
</TABLE>
$3,000,000,000
NationsBank(Register mark)
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
, 1995
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee..................... $1,034,483
Printing and Engraving Expenses..................... 150,000
Legal Fees and Expenses............................. 350,000
Accounting Fees and Expenses........................ 150,000
Blue Sky Fees and Expenses.......................... 40,000
Indenture Trustee Expenses.......................... 175,000
Rating Agency Fees and Expenses..................... 600,000
Listing Fees........................................ 50,000
Miscellaneous....................................... 25,517
$2,575,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers, relating to indemnification. The Registrant's Restated Articles of
Incorporation prevent the recovery by the Registrant of monetary damages against
its directors. However, in accordance with the provisions of the North Carolina
Business Corporation Act (the "Act"), the Registrant's Amended and Restated
Bylaws provide that, in addition to the indemnification of directors and
officers otherwise provided by the Act, the Registrant shall, under certain
circumstances, indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation expense,
including reasonable attorneys' fees, arising out of their status or activities
as directors and officers, except for liability or litigation expense incurred
on account of activities that were at the time known or reasonably should have
been known by such director or officer to be clearly in conflict with the best
interests of the Registrant. Pursuant to such bylaw and as authorized by
statute, the Registrant maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such capacity
whether or not such directors or officers have the right to indemnification
pursuant to the bylaw or otherwise.
In addition to the above-described provisions, Sections 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a current or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believed (x) that his conduct in his official capacity with the corporation was
in its best interests and (y) in all other cases his conduct was at least not
opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. A corporation may not indemnify a current or former director in
connection with a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him in which he was adjudged
liable on such basis. The above standard of conduct is determined by the Board
of Directors or a committee thereof or special legal counsel or the shareholders
as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to indemnify
a director or officer in the defense of any proceeding to which he was a party
because of his capacity as a director or officer against reasonable expenses
when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54. Section 55-8-56 allows a
corporation to indemnify and advance expenses to an officer, employee or agent
who is not a director to the same extent as a director or as otherwise set forth
in the Corporation's articles of incorporation or bylaws or by resolution of the
Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS OF NORTH
CAROLINA LAW DEALING WITH INDEMNIFICATION OF DIRECTORS AND OFFICERS AND DOES NOT
PURPORT TO BE COMPLETE. IT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
RELEVANT STATUTES
II-1
<PAGE>
WHICH CONTAIN DETAILED SPECIFIC PROVISIONS REGARDING THE CIRCUMSTANCES UNDER
WHICH AND THE PERSON FOR WHOSE BENEFIT INDEMNIFICATION SHALL OR MAY BE MADE AND
ACCORDINGLY ARE INCORPORATED HEREIN BY REFERENCE.
In addition, certain sections of each of the forms of Underwriting or
Distribution Agreements filed as Exhibits hereto provide for indemnification of
the Registrant and its directors and officers by the underwriters or agents
against certain liabilities, including certain liabilities under the 1933 Act.
From time to time similar provisions have been contained in other agreements
relating to other securities of the Registrant.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Shares
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and BankAmerica National
Trust Company, as trustee
4.2 Form of Senior Registered Note
4.3 Form of Senior Medium-Term Note (Fixed Rate)
4.4 Form of Senior Medium-Term Note (Floating Rate)
4.5 Indenture dated as of January 1, 1995 between NationsBank Corporation and The Bank of New York,
as trustee
4.6 Form of Subordinated Registered Note
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)
4.8 Form of Subordinated Medium-Term Note (Floating Rate)
4.9 Form of Bearer Note
4.10 Form of Certificate for Preferred Stock, incorporated herein by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form S-3, Registration No. 33-54784
4.11 Form of Deposit Agreement, incorporated herein by reference to Exhibit 4.4 of the Registrant's
Registration Statement on Form S-3, Registration No. 33-54784
4.12 Form of Depositary Receipt, incorporated herein by reference to Exhibit 4.5 of the Registrant's
Registration Statement on Form S-3, Registration No. 33-54784
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities being
registered
12.1 Calculation of Ratios of Earnings to Fixed Charges
12.2 Calculation of Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Ernst & Young, LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the North Carolina Business Corporation Act, as amended, relating to indemni-
fication of directors and officers, incorporated herein by reference to Exhibit 99.3 of the
Registrant's Post-Effective Amendment No. 1 on Form S-8 to its Registration Statement on Form
S-4, Registration No. 33-55145.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
II-2
<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933 Act;
(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 (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and 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 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act 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 Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters,
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the 1933 Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the Registrant after the
opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such Securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
The undersigned Registrant hereby undertakes that, (1) for purposes of
determining any liability under the 1933 Act, the information omitted from the
form of prospectus filed as a part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed pursuant to Rules
424(b)(1), 424(b)(4) or 497(h) under the 1933 Act shall be deemed to be a part
of this Registration Statement at the time it was declared effective, and (2)
for the purpose of determining any liability under the 1933 Act, each
post-effective amendment, if any that contains a form of prospectus shall be
deemed to be a new registration statement relating to the Securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939, as amended (the "Act"),
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, North Carolina, on February 1, 1995.
NATIONSBANK CORPORATION
(REGISTRANT)
By: /s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ HUGH L. MCCOLL, JR. Chairman, Chief Executive Officer February 1, 1995
and Director (Principal
(HUGH L. MCCOLL, JR.) Executive Officer)
/s/ JAMES H. HANCE, JR. Chief Financial Officer February 1, 1995
(Principal Financial Officer)
(JAMES H. HANCE, JR.)
/s/ MARC D. OKEN Executive Vice President February 1, 1995
and Chief Accounting Officer
(MARC D. OKEN) (Principal Accounting
Officer)
* RONALD W. ALLEN Director February 1, 1995
(RONALD W. ALLEN)
* WILLIAM M. BARNHARDT Director February 1, 1995
(WILLIAM M. BARNHARDT)
* THOMAS M. BELK Director February 1, 1995
(THOMAS M. BELK)
* THOMAS E. CAPPS Director February 1, 1995
(THOMAS E. CAPPS)
* R. EUGENE CARTLEDGE Director February 1, 1995
(R. EUGENE CARTLEDGE)
* CHARLES W. COKER Director February 1, 1995
(CHARLES W. COKER)
* THOMAS G. COUSINS Director February 1, 1995
(THOMAS G. COUSINS)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director February , 1995
(ALAN T. DICKSON)
* W. FRANK DOWD, JR. Director February 1, 1995
(W. FRANK DOWD, JR.)
* A. L. ELLIS Director February 1, 1995
(A. L. ELLIS)
* PAUL FULTON Director February 1, 1995
(PAUL FULTON)
* L. L. GELLERSTEDT, JR. Director February 1, 1995
(L. L. GELLERSTEDT, JR.)
Director February , 1995
(TIMOTHY L. GUZZLE)
Director February , 1995
(E. BRONSON INGRAM)
* W. W. JOHNSON Director February 1, 1995
(W. W. JOHNSON)
* BUCK MICKEL Director February 1, 1995
(BUCK MICKEL)
* JOHN J. MURPHY Director February 1, 1995
(JOHN J. MURPHY)
* JOHN C. SLANE Director February 1, 1995
(JOHN C. SLANE)
* JOHN W. SNOW Director February 1, 1995
(JOHN W. SNOW)
* MEREDITH R. SPANGLER Director February 1, 1995
(MEREDITH R. SPANGLER)
* ROBERT H. SPILMAN Director February 1, 1995
(ROBERT H. SPILMAN)
* WILLIAM W. SPRAGUE, JR. Director February 1, 1995
(WILLIAM W. SPRAGUE, JR.)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
* RONALD TOWNSEND Director February 1, 1995
(RONALD TOWNSEND)
* JACKIE M. WARD Director February 1, 1995
(JACKIE M. WARD)
Director February , 1995
(MICHAEL WEINTRAUB)
*By: /s/ CHARLES M. BERGER
CHARLES M. BERGER, ATTORNEY-IN-FACT
</TABLE>
II-6
[Debt Securities]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
, 1995
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the "Indenture")
dated as of between the Company and ,
as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a)The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the
file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the
Act of the Securities. Such registration statement, as
amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating
to the Securities and the plan of distribution thereof and
has previously advised you of all further information
(financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus."
Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act
of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, and the Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b)As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by
reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined),
(i) the Registration Statement as amended as of any such
time, and the Final Prospectus, as amended or supplemented
as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as
of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time,
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company
makes no representations or warranties as to (A) that part
of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the Trust Indenture Act of the Trustee or
(B) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by the Underwriters shall be set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to
be with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities
as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date
and at the time specified in Schedule I hereto, which date and
time may be postponed by agreement between the Representatives
and the Company or as provided in Section 8 hereof (such date and
time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the
purchase price thereof in the manner set forth in Schedule I
hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the
Representatives may request not less than three full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a)Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 via the
Electronic Data Gathering, Analysis and Retrieval System.
The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424, (ii) when any amendment to
the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement
or amendment of or supplement to the Final Prospectus or for
any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening
of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the
suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
(b)If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then amended or supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading,
or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c)The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(d)The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e)The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is
not now so subject.
(f)Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a)No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b)The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the State of North Carolina, has the corporate power
and authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, National Association (or the successors to
such entities) (collectively, the "Subsidiaries") are
national banking associations formed under the laws of
the United States and authorized thereunder to transact
business;
(ii) neither the Company nor any of the
Subsidiaries is required to be qualified or licensed to
do business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. (section mark) 55, as amended) nonassessable,
and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of
the Subsidiaries (except directors' qualifying shares)
are owned, directly or indirectly, by the Company free
and clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities are to be listed on the New
York Stock Exchange, authorization therefor has been
given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all
required supporting documents with respect to the
Securities with the New York Stock Exchange and such
counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory
distribution;
(vi) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and further subject
to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public
policy); and the 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 pursuant to this
Agreement, in the case of the Underwriters' Securities,
or by the purchasers thereof pursuant to Delayed
Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
the Indenture (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy);
(vii) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(viii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any
amendment thereof at the time it became effective
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as
amended or supplemented, contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading;
(ix) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and constitute a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein or in any Delayed Delivery Contracts, except
such as have been obtained under the Act and such as
may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as
have been obtained;
(xi) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such
counsel, the terms of any indenture or other agreement
or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its affiliates; and
(xii) to the best knowledge and information of
such counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to
file the Registration Statement.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or
the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c)The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters as
the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d)The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman and Chief Executive Officer or a Senior Vice
President and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued
and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has
been no material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus.
(e)At the Closing Date, Price Waterhouse LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, that
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i)In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(ii)On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of:
(a)Reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b)Performing the procedures specified by the
American institute of Certified Public Accountants for
a review of interim financial information as described
in SAS NO. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and Prospectus to the date of
the latest available interim financial data; and
(c)Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1)the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2)any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3)(i)at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iii) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price Waterhouse,
and has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph
(e) and in Schedule I hereto.
(f)Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(g)Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h)The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration
of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page
and under the heading "Underwriting" or "Plan of Distribution" in
any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within
the meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Covenants of the Underwriters. Each Underwriter
severally covenants with the Company that (i) it will not offer,
sell or deliver any Securities in bearer form (whether temporary
or definitive) during the restricted period with respect to such
Securities in the United States, or to any United States person
other than an exempt purchaser, and (ii) it has in effect, in
connection with the offer and sale of the Securities in bearer
form during the restricted period, procedures reasonably designed
to ensure that its employees or agents who are directly involved
in selling the Securities are aware that the Securities cannot be
offered or sold during the restricted period to a person who is
within the United States or its possessions or is a United States
person (other than exempt purchaser); (iii) it will not enter
into any written contract with another distributor (within the
meaning of Section 1.163-5(c)(2)(i)(D)(4) of the Treasury
Regulations) to offer or sell the Bearer Securities during the
restricted period unless such distributor provides it (for the
benefit of the Company) with the covenants contained in this
paragraph; and (iv) if it is a United States person, it is
acquiring the Bearer Securities for purposes of resale in
connection with their original issuance and if it retains the
Bearer Securities for its own account, it will only do so in
accordance with the requirements of Section 1.163-
5(c)(2)(i)(D)(6) of the Treasury Regulations.
For purposes of the selling restrictions described in this
section, an offer or sale will be considered to be made to a
person who is within the United States or its possessions if the
offeror or seller of the Bearer Securities has an address within
the United States or its possessions for the offeree or buyer of
the Bearer Securities with respect to the offer or sale.
As used herein, "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 and an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source; "United States" means the United States of America
(including the States and the District of Columbia) and
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands; "Bearer Security" means any Security established
pursuant to that certain Indenture (as herein defined) which is
payable to bearer (including without limitation any Security in
temporary or permanent global bearer form) and title to which
passes by delivery only, but does not include any coupons;
"restricted period" means with respect to a Security, the period
beginning on the earlier of the closing date or the first date on
which the Security is offered to persons other than distributors
and ending on the expiration of the 40-day period beginning on
the Closing Date, except that, notwithstanding the foregoing, any
offer or sale of the Securities by the Company or a distributor
shall be deemed to be made during the restricted period if the
distributor holds the Security as part of an unsold allotment or
subscription; and "exempt purchaser" means (A) an exempt
distributor (as defined in Section 1.163-5(c)(2)(i)(D)(5) of the
Treasury Regulations) that covenants that it is buying the Bearer
Securities for the purpose of resale in connection with the
original issuance thereof, and that if it retains the Bearer
Securities for its own account, it will do so only in accordance
with the requirements of Section 1.163-5(c)(2)(i)(D)(6) of the
Treasury Regulations; (B) an international organization described
in Section 7701(a)(18) of the Internal Revenue Code; (C) a
foreign central bank (as defined in Section 895 of the Internal
Revenue Code and the Treasury Regulations thereunder); (D) a
foreign branch of a United States financial institution as
described in Section 1.163-5(c)(2)(i)(D)(6)(i) of the Treasury
Regulations; and (E) a United States person who acquires the
Bearer Securities through the foreign branch of a United States
financial institution and who holds the Bearer Securities through
such financial institution. Notwithstanding the foregoing,
however, (i) a person described in (A) of this paragraph will not
be considered an exempt purchaser with respect to offers to a
non-United States office of such person; (ii) a person described
in (B) or (C) of this paragraph will not be considered an
international organization or a foreign central bank, as the case
may be, with respect to offers that are not made directly and
specifically to such person; (iii) a person described in (E) of
this paragraph will be considered an exempt purchaser only with
respect to sales of the Bearer Securities; and (iv) in the case
of persons described in (D) or (E) of this paragraph, the
financial institution holding the Bearer Security provides a
certificate the distributor selling the Bearer Security stating
that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the
Treasury Regulations thereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal, Florida, Georgia, New York,
North Carolina, South Carolina, Texas, Maryland or Virginia State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Section 6 and 7 hereof and
this Section 11 shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004-2696, Attn: James R. Tanenbaum; or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at NationsBank Corporate Center, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: NationsBank Corporation, NationsBank Corporate Center, Legal
Department, NC 1007-20-1, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement. SCHEDULE I
Underwriting Agreement dated , 1995
Registration Statement No. 33-
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): % New York Clearing
House (next day) funds.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 1995, 9:30 a.m., New York City
time, Office of Stroock & Stroock & Lavan
Delayed Delivery Arrangements:
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed: SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"),
$ principal amount of the Company's
(the "Securities") offered by the Company's Final
Prospectus dated , 19 , receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest, if any, thereon from
, 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M. on the Delivery
Date to or upon the order of the Company in New York Clearing
House (next day) funds, at your office or at such other place as
shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If
no request is received, the Securities will be registered in the
name of the undersigned and issued in a denomination equal to the
aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required 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 contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
[Preferred Stock]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
, 1995
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), _________ shares of
the Company's preferred stock (the "Preferred Stock"). The
Company may elect to offer fractional interests in shares of
Preferred Stock, in which event the Company will provide for the
issuance by a Depositary of receipts evidencing depositary shares
that will represent such fractional interests ("Depositary
Shares"). The shares of Preferred Stock involved in any such
offering are hereinafter referred to as the "Securities" and,
where appropriate herein, reference to the Securities include the
Depositary Shares. Such Securities are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as
are listed in Schedule II opposite the name of each Underwriter.
The Securities are more fully described in the Final Prospectus,
referred to below. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as
used herein, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a)The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the
file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the
Act of the Securities. Such registration statement, as
amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating
to the Securities and the plan of distribution thereof and
has previously advised you of all further information
(financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus."
Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act
of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, and the Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b)As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by
reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined),
(i) the Registration Statement as amended as of any such
time, and the Final Prospectus, as amended or supplemented
as of any such time, will comply in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company the respective number of Securities set forth
opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective amounts
of Securities to be purchased by the Underwriters shall be set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the purchase price set forth on Schedule I
hereto, of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum
amount of Securities set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the
maximum aggregate amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
amount of Securities to be purchased by each Underwriter as set
forth in Schedule II hereto shall be reduced by an amount which
shall bear the same proportion to the total amount of Contract
Securities as the amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate amount set forth
in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion
and so advise the Company in writing; provided, however, that the
total amount of Securities to be purchased by all Underwriters
shall be the aggregate amount set forth in Schedule II hereto,
less the aggregate amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made at the office, on the date
and at the time specified in Schedule I hereto, which date and
time may be postponed by agreement between the Representatives
and the Company or as provided in Section 8 hereof (such date and
time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the
purchase price thereof in the manner set forth in Schedule I
hereto. Certificates for the Underwriters' Securities shall be
in definitive form, registered in such names and in such
denominations as the Representatives may request not less than
three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a)Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 via the
Electronic Data Gathering, Analysis and Retrieval System.
The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424, (ii) when any amendment to
the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement
or amendment of or supplement to the Final Prospectus or for
any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening
of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the
suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
(b)If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then amended or supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading,
or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c)The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(d)The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e)The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is
not now so subject.
(f)Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a)No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b)The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the State of North Carolina, has the corporate power
and authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, National Association (or the successors to
such entities) (collectively, the "Subsidiaries") are
national banking associations formed under the laws of
the United States and authorized thereunder to transact
business;
(ii) neither the Company nor any of the
Subsidiaries is required to be qualified or licensed to
do business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. {55, as amended) nonassessable,
and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of
the Subsidiaries (except directors' qualifying shares)
are owned, directly or indirectly, by the Company free
and clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities are to be listed on the New
York Stock Exchange, authorization therefor has been
given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all
required supporting documents with respect to the
Securities with the New York Stock Exchange and such
counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory
distribution;
(vi) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any
amendment thereof at the time it became effective
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as
amended or supplemented, contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading;
(viii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and constitute a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein or in any Delayed Delivery Contracts, except
such as have been obtained under the Act and such as
may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as
have been obtained;
(x) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such
counsel, the terms of any indenture or other agreement
or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its affiliates; and
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to
file the Registration Statement.
(xii) the Securities have been duly authorized
and, when paid for as contemplated herein, will be duly
issued, fully paid and nonassessable.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or
the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c)The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d)The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman and Chief Executive Officer or a Senior Vice
President and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued
and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has
been no material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus.
(e)At the Closing Date, Price Waterhouse LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, that
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(ii)On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of:
(a)Reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b)Performing the procedures specified by the
American institute of Certified Public Accountants for
a review of interim financial information as described
in SAS NO. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and Prospectus to the date of
the latest available interim financial data; and
(c)Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1)the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2)any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3)(i)at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iii) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price Waterhouse,
and has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph
(e) and in Schedule I hereto.
(f)Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(g)Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h)The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration
of the Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page
and under the heading "Underwriting" or "Plan of Distribution" in
any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within
the meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal, Florida, Georgia, New York,
North Carolina, South Carolina, Texas, Maryland or Virginia State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Section 6 and 7 hereof and
this Section 10 shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004-2696, Attn: James R. Tanenbaum; or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at NationsBank Corporate Center, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: NationsBank Corporation, NationsBank Corporate Center, Legal
Department, NC 1007-20-01, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement. SCHEDULE I
Underwriting Agreement dated ____________, 1995
Registration Statement No. 33-_____________________
Representatives:___________________________________
Title, Purchase Price and Description of Securities:
Title:_________________________________________
Purchase price (include type of funds,
if applicable):______________
Other provisions:________________________________________
Closing Date, Time and Location:______________________________
Delayed Delivery Arrangements:________________________________
Fee:_____________________________________________________
Minimum amount of each contract: ______________
Maximum aggregate amount of
all contracts: ______________
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:____________________________
SCHEDULE II
Number
of Securities to
Underwriters be Purchased
Total....................................... $
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"),
shares of the Company's Preferred Stock
(the "Securities") offered by the Company's Final Prospectus
dated , 19 , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount
thereof, plus accrued interest, if any, thereon from
, 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M. on the Delivery
Date to or upon the order of the Company in New York Clearing
House (next day) funds, at your office or at such other place as
shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If
no request is received, the Securities will be registered in the
name of the undersigned and issued in a denomination equal to the
aggregate amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the
Final Prospectus mentioned above. Promptly after completion of
such sale to the Underwriters, the Company will mail or deliver
to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to
cause the Securities to be sold and delivered, shall not be
affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required 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 contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY: _______________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
[Common Stock]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
, 1995
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), proposes to issue and sell to the underwriters named
in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), _________
shares (the "Initial Shares") of the Company's common stock (the
"Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as
are listed in Schedule II opposite the name of each Underwriter.
The Company also grants to the Underwriters, severally and not
jointly, the option described in Section 2(c) to purchase up to
_______ additional shares (the "Option Shares"; together with the
Initial Shares, the "Shares") of Common Stock to cover over-
allotments. The Common Stock is more fully described in the
Final Prospectus, referred to below. If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter, as of the
date hereof and as of the date of the Pricing Agreement (such
latter date being hereinafter referred to as the "Representation
Date") that:
(a)The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the
file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the
Act of the Shares. Such registration statement, as amended
at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all
other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424
under the Act a supplement to the form of prospectus
included in such registration statement relating to the
Shares and the plan of distribution thereof and has
previously advised you of all further information (financial
and other) with respect to the Company to be set forth
therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus."
Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act
of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, and the Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b)As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the Act, when,
prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by
reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined),
(i) the Registration Statement as amended as of any such
time, and the Final Prospectus, as amended or supplemented
as of any such time, will comply in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the respective number of
Initial Shares set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Initial Shares pursuant to delayed delivery
arrangements, the respective amounts of Initial Shares to be
purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities
determined as provided below. Shares to be purchased by the
Underwriters are herein sometimes called the "Underwriters'
Securities" and Shares to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Initial Shares from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the purchase price set forth on Schedule I
hereto, of the Initial Shares for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum
amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the
maximum aggregate amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
amount of Initial Shares to be purchased by each Underwriter as
set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of
Contract Securities as the amount of Initial Shares set forth
opposite the name of such Underwriter bears to the aggregate
amount set forth in Schedule II hereto, except to the extent that
you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total amount of Initial Shares to be purchased
by all Underwriters shall be the aggregate amount set forth in
Schedule II hereto, less the aggregate amount of Contract
Securities.
(b) The initial public offering price and the purchase
price of the Initial Shares shall be set forth in a separate
written instrument (the "Pricing Agreement") signed by the
Representatives and the Company, the form of which is attached
hereto as Schedule IV. From and after the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to
include the Pricing Agreement. The purchase price per share to
be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an
amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and
conditions set forth herein, the Company grants an option to the
Underwriters, severally and not jointly, to purchase up to an
additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option
hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not
more than once), only for the purpose of covering over-allotments
upon notice by the Representatives to the Company setting forth
the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and
delivery thereof. Such time and date of Delivery (the "Date of
Delivery") shall be determined by the Representatives but shall
not be later than seven full business days after the exercise of
such option and not in any event prior to the Closing Date (as
defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the
option is exercised shall be purchased by the Underwriters
severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting
obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Initial Shares shall be made at the office, on the date and at
the time specified in Pricing Agreement, which date and time may
be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Initial Shares being herein called
the "Closing Date"). Delivery of the Initial Shares shall be
made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the
manner set forth in Schedule I hereto. Certificates for the
Initial Shares shall be in definitive form, registered in such
names and in such denominations as the Representatives may
request not less than three full business days in advance of the
Closing Date.
The Company agrees to have the Initial Shares available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Closing Date.
In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, delivery and payment
for the Option Shares shall be made at the office specified for
delivery of the Initial Shares in the Pricing Agreement, or at
such other place as the Company and the Representatives shall
determine, on the Date of Delivery as specified in the notice
from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by
the Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company in the manner
set forth in Schedule I hereto. Certificates for the Option
Shares shall be in definitive form, registered in such names and
in such denominations as the Representatives may request not less
than three full business days in advance of the Date of Delivery.
The Company agrees to have the Option Shares available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Date of Delivery.
4. Agreements. The Company agrees with the several
Underwriters that:
(a)Prior to the termination of the offering of the
Shares, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 via the
Electronic Data Gathering, Analysis and Retrieval System.
The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the
Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the
Shares shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b)If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or
if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c)The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(d)The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e)The Company will arrange for the qualification of
the Shares for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will maintain
such qualifications in effect so long as required for the
distribution of the Shares and will arrange for the
determination of the legality of the Shares for purchase by
institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited
service of process of any jurisdiction where it is not now
so subject.
(f)Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a)No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b)The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the State of North Carolina, has the corporate power
and authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, National Association (or the successors to
such entities) (collectively, the "Subsidiaries") are
national banking associations formed under the laws of
the United States and authorized thereunder to transact
business;
(ii) neither the Company nor any of the
Subsidiaries is required to be qualified or licensed to
do business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. (Section mark) 55, as amended) nonassessable,
and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of
the Subsidiaries (except directors' qualifying shares)
are owned, directly or indirectly, by the Company free
and clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or
encumbrances;
(iv) the Shares conform in all material respects
to the description thereof contained in the Final
Prospectus;
(v) if the Shares are to be listed on the New York
Stock Exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Initial Shares
with the New York Stock Exchange and such counsel has
no reason to believe that the Initial Shares will not
be authorized for listing, subject to official notice
of issuance and evidence of satisfactory distribution;
(vi) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any
amendment thereof at the time it became effective
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as
amended or supplemented, contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading;
(viii) this Agreement, the Pricing Agreement and
any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
each constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may
be limited by federal and state securities laws, and
further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of
principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein or in any Delayed Delivery Contracts, except
such as have been obtained under the Act and such as
may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and such
other approvals (specified in such opinion) as have
been obtained;
(x) neither the issue and sale of the Shares, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such
counsel, the terms of any indenture or other agreement
or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its affiliates; and
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to
file the Registration Statement.
(xii) the Initial Shares, any Option Shares as to
which the option granted in Section 2 has been
exercised and the Date of Delivery determined by the
Representatives to be the same as the Closing Date,
have been duly authorized and, when paid for as
contemplated herein, will be duly issued, fully paid
and nonassessable.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or
the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c)The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Initial Shares, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d)The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman and Chief Executive Officer or a Senior Vice
President and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued
and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has
been no material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, that
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(ii)On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of:
(a)Reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b)Performing the procedures specified by the
American institute of Certified Public Accountants for
a review of interim financial information as described
in SAS NO. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and Prospectus to the date of
the latest available interim financial data; and
(c)Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1)the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2)any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3)(i)at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iii) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts percentages and financial information which
are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price Waterhouse,
and has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph
(e) and in Schedule I hereto.
(f)Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Shares as contemplated by
the Registration Statement and the Final Prospectus.
(g)Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h)The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this
Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the copying of this Agreement and the Pricing
Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including
capital duties, stamp duties and stock transfer taxes, if any,
payable upon issuance of any of the Shares, the sale of the
Shares to the Underwriters and the fees and expenses of the
transfer agent for the Shares (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the qualification of
the Shares under state securities laws in accordance with the
provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the
preliminary prospectuses, and of the Prospectuses and any
amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey,
and (viii) the fee of the National Association of Shares Dealers,
Inc. and, if applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in Section
2(c) hereof to purchase all or any portion of the Option Shares
and the Date of Delivery determined by the Representatives
pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to
purchase hereunder are subject to the accuracy of the
representations and warranties of the Company contained herein,
to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and any required filing
of the Final Prospectus pursuant to Rule 424(b) under the
Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall
have received, each dated the Date of Delivery and relating
to the Option Shares:
(i) the favorable opinion of Smith Helms Mulliss
& Moore, L.L.P., counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters,
to the same effect as the opinion required by Section
5(b);
(ii) the favorable opinion of Paul Polking, Esq.,
General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the
same effect as the opinion required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock &
Lavan, counsel for the Underwriters, to the same effect
as the opinion required by Section 5(c);
(iv) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of
the Company and of the principal financial or
accounting officer of the Company with respect to the
matters set forth in Section 5(d);
(v) a letter from Price Waterhouse, in form and
substance satisfactory to the Underwriters,
substantially the same in scope and substance as the
letter furnished to the Underwriters pursuant to
Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(iv)
shall be a date not more than five days prior to the
Date of Delivery; and
(vi) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (b)(iv) of
this Section 7 or (ii) any change, or any development
involving a prospective change, in or affecting the
earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the
offering or the delivery of the Shares as contemplated
by the Registration Statement and the Final Prospectus.
(vii) such other information, certificates and
documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Date of Delivery by
the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed
in writing.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration
of the Shares as originally filed or in any amendment thereof, or
in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Shares which are the subject thereof if
such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Shares to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page
and under the heading "Underwriting" or "Plan of Distribution" in
any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Shares specified in
Schedule I hereto and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Shares) be responsible for any
amount in excess of the underwriting discount applicable to the
Shares purchased by such Underwriter hereunder and (z) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions
which the amount of Shares set forth opposite their names in
Schedule II hereto bear to the aggregate amount of Shares set
forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that
the aggregate amount of Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Shares set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the
Shares, and if such nondefaulting Underwriters do not purchase
all the Shares, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Shares, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal, Florida, Georgia, New York,
North Carolina, South Carolina, Texas, Maryland or Virginia State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Shares.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Shares. The provisions of Section 7 and 8 hereof and this
Section 11 shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004-2696, Attn: James R. Tanenbaum; or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at NationsBank Corporate Center, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: NationsBank corporation, NationsBank Corporate Center, Legal
Department, NC 1007-20-01, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement. SCHEDULE I
Underwriting Agreement dated ____________, 1995
Registration Statement No. 33-_____________________
Representatives:___________________________________
Title, Purchase Price and Description of Shares:
Title:_________________________________________
Purchase price (include type of funds, if
applicable):______________
Other provisions:________________________________________
Delayed Delivery Arrangements:________________________________
Fee:_____________________________________________________
Minimum amount of each contract: ______________
Maximum aggregate amount of
all contracts: ______________
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:____________________________
SCHEDULE II
Number
of Initial Shares to
Underwriters to be Purchased
Total....................................... $
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"),
shares of the Company's Common Stock
(the "Shares") offered by the Company's Final Prospectus dated
, 19 , receipt of a copy of which is hereby acknowledged,
at a purchase price of % of the principal amount thereof, plus
accrued interest, if any, thereon from , 19 ,
to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Shares to be purchased by the undersigned
shall be made on or before 11:00 A.M. on the Delivery Date to or
upon the order of the Company in New York Clearing House (next
day) funds, at your office or at such other place as shall be
agreed between the Company and the undersigned upon delivery to
the undersigned of the Shares in definitive fully registered form
and in such authorized denominations and registered in such names
as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is
received, the Shares will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate
amount of Shares to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Shares on the Delivery Date, and the obligation
of the Company to sell and deliver Shares on the Delivery Date,
shall be subject to the conditions (and neither party shall incur
any liability by reason of the failure thereof) that (1) the
purchase of Shares to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of
the jurisdiction to which the undersigned is subject, and (2) the
Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such amount of the
Shares as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Shares,
and the obligation of the Company to cause the Shares to be sold
and delivered, shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Shares
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required 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 contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY: ________________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature) SCHEDULE IV
_________ Shares
NATIONSBANK CORPORATION
(a North Carolina corporation)
Common Stock
PRICING AGREEMENT
__________ __, 1995
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement, dated
_____________ __, 1995 (the "Underwriting Agreement"), relating
to the purchase by the several Underwriters named in Schedule I
thereto, for whom you are acting as representatives (the
"Representatives"), of the above shares of Common Stock (the
"Initial Shares"), of NationsBank Corporation (the "Company").
We confirm that the Closing Time (as defined in Section
2 of the Purchase Agreement) shall be at 9:30 A.M., New York City
time, on __________ __, 1995 at the offices of Stroock & Stroock
& Lavan, Seven Hanover Square, New York, New York 10004.
Pursuant to Section 2 of the Underwriting Agreement,
the Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the
Initial Shares, determined as provided in said Section 2, shall
be $__.__.
2. The purchase price per share for the Initial Shares
to be paid by the several Underwriters shall be $__.__, being an
amount equal to the initial public offering price set forth above
less $_.__ per share.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:_____________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other Underwriters
named in Schedule A hereto.
SCHEDULE A
NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER DISTRIBUTION AGREEMENT
__________, 1995
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 12
of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), confirms its agreement with each of you
(individually, as "Agent" and collectively, the "Agents") with
respect to the issue and sale by the Company of its Senior
Medium-Term Notes, Series __(the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated
Notes," and together with the Senior Notes, the "Notes"). The
Senior Notes are to be issued pursuant to an Indenture dated as
of January 1, 1995 between the Company and BankAmerica National
Trust Company (the "Senior Trustee"), as trustee (the "Senior
Indenture"), and resolutions of the Board of Directors of the
Corporation (or a committee thereof). The Subordinated Notes are
to be issued pursuant to an Indenture dated as of January 1, 1995
between the Company and The Bank of New York (the "Subordinated
Trustee"), as trustee (the "Subordinated Indenture), and
resolutions of the Board of Directors of the Corporation (or a
committee thereof). The Senior Trustee and the Subordinated
Trustee are collectively referred to herein as the "Trustees,"
and the Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "Indentures."
This Agreement provides both for the sale of Notes by the
Company to one or more of the Agents as principal for resale to
purchasers and (as may from time to time be agreed to by the
Company and the Agent or Agents) directly to purchasers, in which
case the Agent or Agents may act as an agent of the Company in
soliciting Note purchases.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No.
_________) for the registration of debt securities (both senior
and subordinated), preferred shares and common shares under the
Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the SEC under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been
declared effective by the SEC, and the Trustees have been
qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as
an exhibit) and the prospectus constituting a part thereof, and
any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agent by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein including the reservation by the Company of the
right to sell Notes directly on its own behalf as set forth in
Section 3(c) hereof, the Company hereby appoints the Agents
hereunder in connection with the sale of the Notes and agrees
that Notes will be sold exclusively to or through the Agents.
The Agents are authorized to engage the services of any other
broker or dealer in connection with the offer or sale of the
Notes purchased by an Agent as principal for resale to others,
but are not authorized to appoint sub-agents in connection with
the sale of Notes through an Agent as agent.
(b) Sale of Notes. The Company shall not sell or approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to
the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise monitoring
the availability of Notes for sale under the Registration
Statement.
(c) Purchases as Principal. Unless otherwise agreed to by
the Company and the Agent or Agents, all Notes sold hereunder
shall be sold to one or more Agents as principal for resale to
purchasers. All purchases of Notes by an Agent as principal
shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and
the Company, the Agent, acting solely as agent for the Company
and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Company, orally, each offer to
purchase Notes solicited by such Agent on an agency basis, other
than those offers rejected by the Agent. The Agent shall have
the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes by persons solicited by the Agent, as
a whole or in part, and any such rejection shall not be deemed a
breach of the Agent's agreement contained herein. The Company
may accept or reject any proposed purchase of the Notes, in whole
or in part, and any such rejection shall not be deemed a breach
of the Company's agreement herein. The Agent shall make
reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company. The Agent
shall not have any liability to the Company in the event any such
agency purchase is not consummated for any reason other than the
negligence of the Agent. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Company shall (i) hold the Agent for such purchase
harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) notwithstanding
such default, pay to such Agent any commission to which it would
be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any
Notes the placement of which an Agent arranges shall be placed by
such Agent, and any Notes purchased by such Agent shall be
purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on
the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of
the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether through an Agent
as agent or to an Agent as principal), as of the date of each
delivery of Notes (whether through an Agent as agent or to an
Agent as principal) (the date of each such delivery to an Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the
Registration Statement) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) The Company meets the requirements for use of Form
S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has become effective. Such
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as
supplemented with respect to the Notes is first filed
pursuant to Rule 424 under the 1933 Act, when any amendment
to the Registration Statement becomes effective (including
the filing of any document incorporated by reference in the
Registration Statement) and as of the applicable
Representation Date, (a) the Registration Statement, as
amended or supplemented as of any such time, the Prospectus,
when filed, and the applicable Indenture will comply in all
material respects with the applicable requirements of the
1933 Act, the 1939 Act and the 1934 Act and the respective
rules thereunder, (b) the Registration Statement, as amended
as of any such time, will not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, and (c) the
Prospectus, as amended or supplemented as of any such time,
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company
makes no representations or warranties as to (x) that part
of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the 1939 Act of either of the Trustees or
(y) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration
Statement and the Prospectus.
(iii) The Company has complied and will comply with all
the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing
business in Cuba; provided, however, that in the event that
such Section 517.075 shall be repealed, or amended such that
issuers shall no longer be required to disclose in
prospectuses information regarding business activities in
Cuba or that a broker, dealer or agent shall no longer be
required to obtain a statement from issuers regarding such
compliance, then this representation and agreement shall be
of no further force and effect.
(b) Additional Certifications. Any certificate signed by
any director or officer of the Company and delivered to an Agent
or to counsel for such Agent in connection with an offering of
Notes or the sale of Notes to an Agent as principal shall be
deemed a representation and warranty by the Company to such Agent
as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an
Agent and the Company, Notes shall be purchased by such Agent as
principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount equivalent to the applicable commissions
set forth in Exhibit C hereto. Such purchases shall be made in
accordance with terms agreed upon by the Agent and the Company
(which shall be agreed upon orally, with written confirmation
prepared by the Agent and delivered to the Company within two
business days of such oral agreement). The Agent's commitment to
purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth. An Agent may engage the services of any other
broker or dealer in connection with the resale of the Notes
purchased as principal and may reallow any portion of the
discount received in connection with such purchases from the
Company to such brokers and dealers.
(b) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to
the terms and conditions herein set forth, when agreed by the
Company and an Agent, such Agent, as an agent of the Company,
will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the
Prospectus. All Notes sold through an Agent as agent will be
sold at 100% of their principal amount unless otherwise agreed to
by the Company and such Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the
Agents, as agent, commencing at any time for any period of time
or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of purchases from
the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission equal to
the applicable percentage of the principal amount of each Note
sold by the Company as a result of a solicitation made by such
Agent as set forth in Exhibit C hereto.
(c) Company Sales to Unsolicited Purchasers.
Notwithstanding any provision herein to the contrary, the Company
reserves the right to (i) sell Notes, at any time, directly on
its own behalf to any unsolicited purchaser, whether directly to
such purchaser or through the agent of such purchaser and (ii)
accept offers to purchase Notes through additional agents on
substantially the same terms and conditions as would apply to the
Agents hereunder. Upon the sale of any Notes to an unsolicited
purchaser, no Agent shall be entitled to any commission pursuant
to this Agreement.
(d) Administrative Procedures. The purchase price,
interest rate, maturity date and other terms of the Notes (as
applicable) specified in Exhibit B hereto shall be agreed upon by
the Company and the applicable Agent and set forth in a pricing
supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes.
Administrative procedures with respect to the sale of Notes shall
be agreed upon from time to time by the Agents and the Company
(the "Procedures"). Initial Administrative Procedures dated
__________, 1995 shall remain in effect until changed by the
Agents and the Company. The Agents and the Company agree to
perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the
Agents immediately (i) of the effectiveness of any amendment to
the Registration Statement, (ii) of the transmittal to the SEC
for filing of any supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
from the SEC with respect to the Registration Statement or the
Prospectus (other than with respect to a document filed with the
SEC pursuant to the 1934 Act which will be incorporated by
reference in the Registration Statement and the Prospectus), (iv)
of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information relating thereto (other than such a
request with respect to a document filed with the SEC pursuant to
the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), and (v) of the
issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will
give the Agents notice of its intention to file or prepare any
additional registration statement with respect to the
registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
Notes or similar changes or an amendment or supplement effected
by the filing of a document with the SEC pursuant to the 1934
Act) and will furnish the Agents with copies of any such
registration statement or amendment or supplement proposed to be
filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any
such registration statement or amendment or supplement in a form
to which the Agents or their counsel shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus
and 1934 Act Filings. The Company will deliver to the Agents as
many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes under
the Act. The Company will furnish to the Agents copies of any
Annual Report on Form 10-K, Quarterly Report on Form 10-Q or
Current Report on Form 8-K filed by the Company with the
Commission pursuant to the 1934 Act as soon as practicable after
the filing thereof.
(d) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold through or to an
Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents
and will file such Pricing Supplement with the SEC pursuant to
Rule 424(b)(2) under the 1933 Act not later than the close of
business on the second business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agent and to cease
sales of any Notes any Agent may then own as principal, and the
Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and thereafter
shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding thereof,
as may be required by the 1933 Act or the 1934 Act or otherwise.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish such information to the
Agents and thereafter shall cause the Registration Statement and
the Prospectus to be amended to include or incorporate by
reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such
financial statements, as may be required by the 1933 Act or the
1934 Act or otherwise.
(h) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of
Rule 158 under the 1933 Act) covering each twelve-month period
beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents may
designate and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act,
will file promptly all documents required to be filed with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) Suspension of Certain Obligations. The Company shall
not be required to comply with the provisions of subsections (e),
(f) or (g) of this Section during any period from the time (i)
the Agents shall have suspended solicitation of purchases of the
Notes in their capacity as agent pursuant to a request from the
Company and (ii) the Agents shall not then hold any Notes as
principal purchased from the Company, to the time the Company
shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently agree for the Agents to
purchase Notes as principal.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase
the Notes as agent of the Company, the obligations of any
purchasers of the Notes sold through any Agent as agent and any
obligation of an Agent to purchase Notes as principal or
otherwise will be subject to the accuracy of the representations
and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Smith
Helms Mulliss & Moore, L.L.P., counsel to the Company, to
the effect of paragraphs (i) and (iv) through (x) below, and
the opinion of Paul J. Polking, Executive Vice President and
General Counsel to the Company, to the effect of paragraphs
(ii) and (iii) below:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of
the State of North Carolina, has the corporate power
and authority to own its properties and conduct its
business as described in the Prospectus and is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of
NationsBank of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, National Association (or the successors to
such entities) (collectively, the "Subsidiaries"), is a
national banking association formed under the laws of
the United States and authorized thereunder to transact
business.
(ii) To the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is
required to be qualified or licensed to do business as
a foreign corporation in any jurisdiction.
(iii) All the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. (section mark) 55, as amended)
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may
be limited by federal and state securities laws, and
further subject to 12 U.S.C. (section mark) 1818(b)(6)(D)
and similar bank regulatory powers and to the application
of principles of public policy underlying all such
laws).
(v) Each of the Indentures has been duly
authorized, executed and delivered, has been duly
qualified under the 1939 Act, as applicable, and
constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, and the Notes have been duly authorized and,
when the terms of the Medium-Term Notes have been
established and when the Medium-Term Notes have been
completed, executed, authenticated and delivered in
accordance with the provisions of the applicable
Indenture, the applicable Board Resolution and this
Agreement against payment of the consideration
therefor, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
such Indenture, subject (with respect to each of the
Indentures and the Notes) as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that
may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C. (section mark)
1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy
underlying all such laws.
(vi) The forms of Notes attached to the
Secretary's Certificate delivered to the Agents conform
in all material respects to the description thereof
contained in the Prospectus, as supplemented or
amended.
(vii) The Registration Statement has become
effective under the 1933 Act; to the best knowledge of
such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other
than the financial statements and other financial and
statistical information contained therein or
incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the 1933 Act and the 1934 Act and the respective
rules thereunder.
(viii) To the best knowledge of such counsel, except
as disclosed in the Registration Statement or the
Prospectus, there is no pending or threatened action,
suit or proceeding before or by any court or
governmental agency, authority or body or any
arbitrator involving the Company or any of the
Subsidiaries, of a character required to be disclosed
in the Registration Statement, which is not adequately
disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to
be described in the Registration Statement or the
Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(ix) To the best knowledge of such counsel,
neither the issuance and sale of the Notes, the
consummation of any other of the transactions
contemplated by this Agreement nor the fulfillment of
the terms thereof will conflict with, result in a
breach of, or constitute a default under the Restated
Articles of Incorporation or the Amended and Restated
Bylaws of the Company or, to the best of such counsel's
knowledge, the terms of any material indenture or other
agreement or instrument known to such counsel and to
which the Company or any of the Subsidiaries is a party
or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of the
Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the
Subsidiaries.
(x) To the best knowledge of such counsel, no
authorization, order, approval or consent of, or filing
with, any court or governmental authority or agency is
necessary or required in connection with the sale of
the Notes hereunder, except such as have been obtained
under the 1933 Act or the 1933 Act Regulations and such
as may be required under foreign or state securities or
insurance laws in connection with the distribution of
the Notes.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or the
United States, to the extent deemed proper and specified in
such opinion, upon counsel for the Agents or upon the
opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agents;
and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and
the Subsidiaries and public officials.
(2) Opinion of Counsel to the Agents. The opinion of
Stroock & Stroock & Lavan, counsel to the Agents, covering
the matters referred to in subparagraph (1) under the
subheadings (iv) through (vii), inclusive, above.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Company or upon the opinion of
other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Company; and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and the
Subsidiaries and public officials.
(3) In giving their opinions required by subsections
(a)(1) and (a)(2) of this Section, but without opining in
connection therewith, Smith Helms Mulliss & Moore, L.L.P.
and Stroock & Stroock & Lavan shall each additionally state
that although they have not independently verified, are not
passing upon and assume no responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, such counsel has no reason to
believe that the Registration Statement or any amendment
thereof at the time it became effective, or that the
Prospectus, as amended or supplemented, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Officer's Certificate. At the date hereof, the Agents
shall have received a certificate of the Chairman and Chief
Executive Officer or a Senior Vice President and the chief
financial or chief accounting officer of the Company, dated as of
the date hereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there
has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising from transactions in
the ordinary course of business, except as set forth or
contemplated in the Prospectus, as supplemented or amended, (ii)
the other representations and warranties of the Company contained
in Section 2 hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as
of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of
such certificate, and (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or
threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall
have received a letter from Price Waterhouse LLP ("Price
Waterhouse") dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for
a review of interim financial information as described
in SAS NO. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and Prospectus to the date of
the latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iv) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price
Waterhouse, and has found such amounts, percentages and
financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any purchase of Notes by an Agent
as principal, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of Notes as herein contemplated shall be satisfactory in
form and substance to such Agent and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Agents by
notice to the Company at any time and any such termination shall
be without liability of any party to any other party, except that
the covenant regarding provision of an earnings statement set
forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 9 hereof, the indemnity and
contribution agreements set forth in Section 8 hereof, the
provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 10 hereof and
the provisions regarding parties set forth under Section 15
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the
Agents.
Delivery of Notes sold through an Agent as agent shall be
made by the Company to such Agent for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the Agent shall promptly notify the Company and
deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will
promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will
reimburse the Agent on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the
Company's account. Unless otherwise agreed between the Company
and the Agent, all Notes will be issued in book-entry only form
and will be represented by one or more fully registered global
securities.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each
delivery of Notes to an Agent pursuant to a sale of Notes to such
Agent as principal, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to such
Agent, of the Note or Notes relating to such acceptance or sale,
as the case may be, as though made at and as of each such time
(and it is understood that such representations and warranties
shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that
(i) there is filed with the SEC any Quarterly Report on Form 10-Q
or Annual Report on Form 10-K that is incorporated by reference
into the Prospectus, or (ii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
Notes or similar changes, an amendment or supplement which
relates exclusively to an offering of securities other than the
Notes or, except as hereinbefore described, an amendment or
supplement resulting from the filing of any document incorporated
by reference therein), the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate of the Chairman
and Chief Executive Officer, any Senior Vice President, the Chief
Financial Officer, the Chief Accounting Officer or Treasurer of
the Company dated the date of filing with the SEC of such
supplement or document or the date of effectiveness of such
amendment, as the case may be, in form satisfactory to the Agents
to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which was last furnished to
the Agents are true and correct at the time of such filing,
amendment or supplement, as the case may be, as though made at
and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed any Quarterly
Report on Form 10-Q, or (iii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
the Notes or similar changes or solely for the inclusion of
additional financial information, an amendment or supplement
which relates exclusively to an offering of securities other than
the Notes or, except as hereinbefore described, an amendment or
supplement resulting from the filing of any document incorporated
by reference therein), the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents
the written opinions of Smith Helms Mulliss & Moore, L.L.P.,
Counsel to the Company, and Paul J. Polking, General Counsel to
the Company, or other counsel satisfactory to the Agents, dated
the date of filing with the SEC of such supplement or document or
the date of effectiveness of such amendment, as the case may be,
in form and substance satisfactory to the Agents, of the same
tenor as the opinions referred to in Section 5(a)(1) hereof, but
modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinions; or, in lieu of such opinions, counsel
last furnishing such opinions to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents
may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed with the SEC any
Quarterly Report on Form 10-Q or (iii) if required by the Agents,
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information (other
than an amendment or supplement resulting from the filing of a
Current Report on Form 8-K that is incorporated by reference
therein), the Company shall cause Price Waterhouse forthwith to
furnish the Agents a letter, dated the date of effectiveness of
such amendment, supplement or document filed with the SEC, as the
case may be, in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i)
and (ii) of Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 5(c) with such changes as may be
necessary to reflect changes in the financial statements and
other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, Price
Waterhouse may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement.
If any other information included therein is of an accounting,
financial or statistical nature, the Agents may request
procedures be performed with respect to such other information.
If Price Waterhouse is willing to perform and report on the
requested procedures, such letter should cover such other
information. Any letter required to be provided by Price
Waterhouse hereunder shall be provided within five business days
of the filing of the Annual Report on Form 10-K or, with respect
to any letter required by the Agents pursuant to subparagraph
(ii) or (iii) hereof, the request by the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person who controls any Agent within the meaning
of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act,
the 1934 Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or
arise out of or are based upon 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, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Agent
specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Prospectus shall not
inure to the benefit of any Agent (or any person controlling such
Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus
as amended or supplemented in connection with the sale of such
Notes excluding documents incorporated therein by reference at or
prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the 1933
Act and the untrue statement or omission of a material fact
contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement and each person who controls
the Company within the meaning of either the 1933 Act or the 1934
Act, to the same extent as the foregoing indemnity from the
Company to each Agent, but only with reference to written
information relating to such Agent furnished to the Company by or
on behalf of such Agent specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
any Agent may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph on the cover page and
under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information
furnished in writing by or on behalf of the several Agents for
inclusion in the documents referred to in the foregoing
indemnity, and you, as the Agents, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Agent in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Agents shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Agents may be subject in such proportion so that each Agent is
responsible for that portion represented by the percentage that
the total commissions and underwriting discounts received by such
Agent bears to the total sales price from the sale of Notes sold
to or through the Agents to the date of such liability, and the
Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls any Agent within the meaning of the 1933
Act shall have the same rights to contribution as such Agent, and
each person who controls the Company within the meaning of either
the 1933 Act or the 1934 Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to the provisions of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustees and their counsel, and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities
or insurance laws in accordance with the provisions of Section
4(i) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Agents in connection therewith
and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Agent of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, printing, reproducing and delivery to
the Agents of copies of the Indentures and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses incurred in connection with the
listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers,
Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(m) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(n) The fees and expenses of any depository and any
nominees thereof in connection with the Notes.
SECTION 10. Covenants of the Agents.
Each Agent severally covenants with the Company that (i) it
will not offer, sell or deliver any Notes in bearer form (whether
temporary or definitive) during the restricted period with
respect to such Notes in the United States, or to any United
States person other than an exempt purchaser, and (ii) it has in
effect, in connection with the offer and sale of the Notes in
bearer form during the restricted period, procedures reasonably
designed to ensure that its employees or agents who are directly
involved in selling the Notes are aware that the Notes cannot be
offered or sold during the restricted period to a person who is
within the United States or its possessions or is a United States
person (other than exempt purchaser); (iii) it will not enter
into any written contract with another distributor (within the
meaning of Section 1.163-5(c)(2)(i)(D)(4) of the Treasury
Regulations) to offer or sell the Bearer Notes during the
restricted period unless such distributor provides it (for the
benefit of the Company) with the covenants contained in this
paragraph; and (iv) if it is a United States person, it is
acquiring the Bearer Notes for purposes of resale in connection
with their original issuance and if it retains the Bearer Notes
for its own account, it will only do so in accordance with the
requirements of Section 1.163-5(c)(2)(i)(D)(6) of the Treasury
Regulations.
For purposes of the selling restrictions described in this
section, an offer or sale will be considered to be made to a
person who is within the United States or its possessions if the
offeror or seller of the Bearer Notes has an address within the
United States or its possessions for the offeree or buyer of the
Bearer Notes with respect to the offer or sale.
As used herein, "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 and an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source; "United States" means the United States of America
(including the States and the District of Columbia) and
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands; "Bearer Note" means any Note established
pursuant to the Indentures (as herein defined) which is payable
to bearer (including without limitation any Note in temporary or
permanent global bearer form) and title to which passes by
delivery only, but does not include any coupons; "restricted
period" means with respect to a Note, the period beginning on the
earlier of the closing date or the first date on which the Note
is offered to persons other than distributors and ending on the
expiration of the 40-day period beginning on the closing date,
except that, notwithstanding the foregoing, any offer or sale of
the Notes by the Company or a distributor shall be deemed to be
made during the restricted period if the distributor holds the
Note as part of an unsold allotment or subscription; and "exempt
purchaser" means (A) an exempt distributor (as defined in Section
1.163-5(c)(2)(i)(D)(5) of the Treasury Regulations) that
covenants that it is buying the Bearer Notes for the purpose of
resale in connection with the original issuance thereof, and that
if it retains the Bearer Notes for its own account, it will do so
only in accordance with the requirements of Section 1.163-
5(c)(2)(i)(D)(6) of the Treasury Regulations; (B) an
international organization described in Section 7701(a)(18) of
the Internal Revenue Code; (C) a foreign central bank (as defined
in Section 895 of the Internal Revenue Code and the Treasury
Regulations thereunder); (D) a foreign branch of a United States
financial institution as described in Section 1.163-
5(c)(2)(i)(D)(6)(i) of the Treasury Regulations; and (E) a United
States person who acquires the Bearer Notes through the foreign
branch of a United States financial institution and who holds the
Bearer Notes through such financial institution. Notwithstanding
the foregoing, however, (i) a person described in (A) of this
paragraph will not be considered an exempt purchaser with respect
to offers to a non-United States office of such person; (ii) a
person described in (B) or (C) of this paragraph will not be
considered an international organization or a foreign central
bank, as the case may be, with respect to offers that are not
made directly and specifically to such person; (iii) a person
described in (E) of this paragraph will be considered an exempt
purchaser only with respect to sales of the Bearer Notes; and
(iv) in the case of persons described in (D) or (E) of this
paragraph, the financial institution holding the Bearer Note
provides a certificate the distributor selling the Bearer Note
stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the
Treasury Regulations thereunder.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or by
or on behalf of the Company, and shall survive each delivery of
and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any agreement hereunder by an Agent to purchase Notes
as principal) may be terminated for any reason, with respect to
one or more, or all, of the Agents, at any time by either the
Company or one or more of the Agents upon the giving of 30 days'
written notice of such termination to the other party hereto.
Any termination by the Company of this Agreement with respect to
one or more, but less than all, of the Agents shall be effective
with respect to such designated Agents only, and the Agreement
will remain in force and effect with respect to any other Agents
who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent may terminate any agreement hereunder by
such Agent to purchase Notes as principal, immediately upon
notice to the Company at any time prior to the Settlement Date
relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or (ii) if
there shall have occurred, since the date of such agreement, any
outbreak or material escalation of hostilities or other national
or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes,
or (iii) if, since the date of such agreement, trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited, or (iv) if, since the date of such
agreement, a banking moratorium shall have been declared by
either Federal or New York authorities.
If, after the date of an agreement hereunder to purchase
Notes as principal and prior to the Settlement Date with respect
to such agreement, the rating assigned by Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc. or Moody's
Investors Service, Inc. as the case may be, to any debt
securities of the Company shall have been lowered or if either of
such rating agencies shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
then the Company and the Agent mutually shall determine whether
the terms of such agreement to purchase Notes shall need to be
renegotiated and, if so, shall so negotiate in good faith the
revised terms of such agreement to purchase Notes. In the event
that the Company and the Agent reasonably fail to agree on any
such revised terms, then either the Company or the Agent may
terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this
Section 11, or following the Settlement Date in connection with a
sale to or through an Agent appointed on a one-time basis,
neither party will have any liability to the other party hereto,
except that (i) the Agents shall be entitled to any commission
earned in accordance with the third paragraph of Section 3(b)
hereof, (ii) if at the time of termination (a) any Agent shall
own any Notes purchased by it as principal with the intention of
reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth
in Section 4(h) hereof, the provisions of Section 9 hereof, the
indemnity and contribution agreements set forth in Section 8
hereof, and the provisions of Sections 10, 15 and 16 hereof shall
remain in effect.
SECTION 13. Additional Agents.
The Company may from time to time designate additional
agents to participate in the sale of Notes as principal or agent
hereunder. Such agency participation may be either on an on-
going basis or on a one time basis for a single transaction.
Such agents shall become a party to this Agreement and shall
thereafter be subject to the provisions hereof and entitled to
the benefits hereunder upon the execution of a counterpart hereof
or other form of acknowledgement of its appointment hereunder and
delivery to the Company of addresses for notice hereunder and
under the Procedures. After the time an Agent is appointed, the
Company shall deliver to the Agent copies of these documents
earlier delivered to other Agents under Sections 5(a), 5(b),
5(c), 7(b), 7(c) and 7(d) hereof.
SECTION 14. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram.
Notices to the Company shall be delivered to it at the address
specified below and notices to any Agent shall be delivered to it
at the address set forth on Exhibit A.
If to the Company:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Attention: John E. Mack, Treasurer
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
NationsBank Corporation
NationsBank Corporate Center
Legal Department, NC1007-20-01
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
227 N. Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 14.
SECTION 15. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the
parties shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and
to be performed in such State. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 16. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such
purchase.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Company in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:
Name:
Title: Senior Vice President and
Treasurer
Accepted:
NationsBanc Capital Markets, Inc.
By:
Name:
Title: Director
[Signatures By Agents To Follow]
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBanc Corporate Center
7th Floor, NC1007-01-01
Charlotte, North Carolina 28255-0065
With a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
[Additional Agents To Be Specified]
EXHIBIT B
The following terms, if applicable, shall be agreed to by an
Agent and the Company in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
EXHIBIT C
As compensation for the services of an Agent hereunder, the
Company shall pay it, on a discount basis, a commission for the
sale of each Note by such Agent equal to the principal amount of
such Note multiplied by the appropriate percentage set forth
below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year . . . . . . .125%
From 1 year to less than 18 months . . . . . .150
From 18 months to less than 2 years . . . . . .200
From 2 years to less than 3 years . . . . . . .250
From 3 years to less than 4 years . . . . . . .350
From 4 years to less than 5 years . . . . . . .450
From 5 years to less than 6 years . . . . . . .500
From 6 years to less than 7 years . . . . . . .550
From 7 years to less than 10 years . . . . . .600
From 10 years to less than 15 years . . . . . .625
From 15 years to less than 20 years . . . . . .700
From 20 years to 30 years . . . . . . . . . . .750
NATIONSBANK CORPORATION,
as Issuer
and
BANKAMERICA NATIONAL TRUST COMPANY,
as Trustee
_______________
INDENTURE
Dated as of January 1, 1995
_______________
Senior Debt Securities
<PAGE>
CROSS-REFERENCE SHEET*
between
Provisions of Sections 310 through 318 of the Trust
Indenture Act of 1939, as amended, and the within Indenture
between NationsBank Corporation and BankAmerica Trust
Company of New York, Trustee:
_______________
SECTION OF ACT SECTION OF INDENTURE
310(a)(1) and (2). . . . . . . . . . . 7.09
310(a)(3) and (4). . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . 7.08 and 7.10
310(c) . . . . . . . . . . . . . . . . Not applicable
311(a) and (b) . . . . . . . . . . . . 7.13
311(c) . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . 5.01 and 5.02(a)
312(b) and (c) . . . . . . . . . . . . 5.02(b) and (c)
313(a) . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1). . . . . . . . . . . . . . . Not applicable
313(b)(2). . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . 5.04(d)
314(a) . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . Not applicable
314(c)(1) and (2). . . . . . . . . . . 14.04
314(c)(3). . . . . . . . . . . . . . . Not applicable
314(d) . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . 15.05
314(f) . . . . . . . . . . . . . . . . Not applicable
315(a), (c) and (d). . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . 7.14
315(e) . . . . . . . . . . . . . . . . 6.14
316(a)(1). . . . . . . . . . . . . . . 6.12
316(a)(2). . . . . . . . . . . . . . . Omitted
316(a) last sentence . . . . . . . . . 8.04
316(b) . . . . . . . . . . . . . . . . 6.08
317(a) . . . . . . . . . . . . . . . . 6.03 and 6.04
317(b) . . . . . . . . . . . . . . . . 4.03(a)
318(a) . . . . . . . . . . . . . . . . 15.07
*This Cross-Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security: . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL, S.A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request, Company Order and Company Consent . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euro Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Securities . . . . . . . . . . . . . . . . . 5
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Possessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Subsidiary Bank. . . . . . . . . . . . . . . . . . . . . . 7
Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security. . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . . . . . . . . . . . 8
*The Table of Contents is not part of the Indenture.
i
<PAGE>
PAGE
Subsidiary Bank. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939. . . . . . . . . . . . . . . . . . . . . 8
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States Alien. . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wholly Owned Subsidiary. . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series . . . . . . . . . . . 9
SECTION 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03. Form of Securities Generally; Establishment
of Terms of Series . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.04. Securities in Global Form. . . . . . . . . . . . . . . . . 14
SECTION 2.05. Denominations; Record Date; Payment of
Interest . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.06. Execution, Authentication, Delivery and
Dating of Securities . . . . . . . . . . . . . . . . . . . 15
SECTION 2.07. Exchange and Registration of Transfer of
Securities . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.08. Temporary Securities . . . . . . . . . . . . . . . . . . . 23
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Securities and Coupons . . . . . . . . . . . . . . . . . . 26
SECTION 2.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.11. Book-Entry Only System . . . . . . . . . . . . . . . . . . 28
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability of
Section. . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.02. Notice of Redemption; Selection of
Securities . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.03. Payment of Securities Called for Redemption. . . . . . . . 30
SECTION 3.04. Redemption Suspended During Event of Default . . . . . . . 31
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest . . . . . . . . 32
SECTION 4.02. Offices for Notices and Payments, etc. . . . . . . . . . . 32
SECTION 4.03. Provisions as to Paying Agent. . . . . . . . . . . . . . . 34
SECTION 4.04. Statement as to Compliance . . . . . . . . . . . . . . . . 35
SECTION 4.05. Corporate Existence. . . . . . . . . . . . . . . . . . . . 36
ii
<PAGE>
PAGE
SECTION 4.06. Limitation on Sale or Issuance of Capital
Stock of a Principal Subsidiary Bank . . . . . . . . . . . 36
SECTION 4.07. Waiver of Covenants. . . . . . . . . . . . . . . . . . . . 37
SECTION 4.08. Notice of Default. . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.09. Determination of Additional Amounts. . . . . . . . . . . . 38
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists . . . . . . . . . . . . . . . . . . . 39
SECTION 5.02. Preservation and Disclosure of Lists . . . . . . . . . . . 39
SECTION 5.03. Reports by the Company . . . . . . . . . . . . . . . . . . 41
SECTION 5.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . 41
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default; Acceleration of Maturity. . . . . . . . 43
SECTION 6.02. Rescission and Annulment . . . . . . . . . . . . . . . . . 45
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . 46
SECTION 6.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . 46
SECTION 6.05. Trustee May Enforce Claims Without Possession
of Securities or Coupons . . . . . . . . . . . . . . . . . 48
SECTION 6.06. Application of Money Collected . . . . . . . . . . . . . . 48
SECTION 6.07. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 48
SECTION 6.08. Unconditional Right of Securityholders to
Receive Principal and Interest . . . . . . . . . . . . . . 49
SECTION 6.09. Restoration of Rights and Remedies . . . . . . . . . . . . 49
SECTION 6.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . 50
SECTION 6.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . 50
SECTION 6.12. Control by Securityholders . . . . . . . . . . . . . . . . 50
SECTION 6.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 51
SECTION 6.14. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 51
SECTION 6.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 52
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee . . . . . . . . . . 52
SECTION 7.02. Reliance on Documents, Opinions, etc . . . . . . . . . . . 53
SECTION 7.03. No Responsibility for Recitals, etc. . . . . . . . . . . . 54
SECTION 7.04. Ownership of Securities. . . . . . . . . . . . . . . . . . 55
SECTION 7.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . 55
SECTION 7.06. Compensation and Expenses of Trustee . . . . . . . . . . . 55
SECTION 7.07. Officers' Certificate as Evidence. . . . . . . . . . . . . 56
SECTION 7.08. Disqualifications; Conflicting Interest of
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 56
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PAGE
SECTION 7.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . 63
SECTION 7.10. Resignation or Removal of Trustee. . . . . . . . . . . . . 63
SECTION 7.11. Acceptance by Successor Trustee. . . . . . . . . . . . . . 64
SECTION 7.12. Successor by Merger, etc.. . . . . . . . . . . . . . . . . 65
SECTION 7.13. Limitations on Rights of Trustee as Creditor . . . . . . . 66
SECTION 7.14. Notice of Default. . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.15. Appointment of Authenticating Agent. . . . . . . . . . . . 70
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders. . . . . . . . . . . . . . . . . 72
SECTION 8.02. Proof of Execution by Securityholders. . . . . . . . . . . 73
SECTION 8.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . 74
SECTION 8.04. Company-Owned Securities Disregarded . . . . . . . . . . . 75
SECTION 8.05. Revocation of Consents; Future
Securityholders Bound. . . . . . . . . . . . . . . . . . . 75
SECTION 8.06. Record Date. . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meeting. . . . . . . . . . . . . . . . . . . . 76
SECTION 9.02. Call of Meetings by Trustee. . . . . . . . . . . . . . . . 76
SECTION 9.03. Call of Meetings by Company or
Securityholders. . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.04. Qualifications for Voting. . . . . . . . . . . . . . . . . 77
SECTION 9.05. Regulations. . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 79
SECTION 10.02. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures. . . . . . . . . . . . . . 81
SECTION 10.04. Notation on Securities. . . . . . . . . . . . . . . . 82
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . 82
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PAGE
SECTION 11.02. Successor Corporation Substituted . . . . . . . . . . 83
SECTION 11.03. Opinion of Counsel and Officers' Certificate
to be Given Trustee . . . . . . . . . . . . . . . . . 83
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture. . . . . . . . . . . . . . . . 83
SECTION 12.02. Deposited Moneys to be Held in Trust by
Trustee . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 12.03. Paying Agent to Repay Moneys Held . . . . . . . . . . 85
SECTION 12.04. Return of Unclaimed Moneys. . . . . . . . . . . . . . 85
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate
Obligations . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article. . . . . . . . . . . . . . . 86
SECTION 14.02. Defeasance and Discharge. . . . . . . . . . . . . . . 86
SECTION 14.03. Covenant Defeasance.. . . . . . . . . . . . . . . . . 87
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance.. . . 87
SECTION 14.05. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions. . . 89
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties
and Securityholders . . . . . . . . . . . . . . . . . 90
SECTION 15.02. Provisions Binding on Company's Successors. . . . . . 90
SECTION 15.03. Addresses for Notices, etc., to Company and
Trustee.. . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 15.04. Notice to Holders of Securities; Waiver 91
SECTION 15.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 15.06. Legal Holidays. . . . . . . . . . . . . . . . . . . . 92
SECTION 15.07. Trust Indenture Act to Control. . . . . . . . . . . . 93
SECTION 15.08. Execution in Counterparts . . . . . . . . . . . . . . 93
SECTION 15.09. Governing Law. . . . . . . . . . . . . . . . . . . . 93
SECTION 15.10. Separability Clause . . . . . . . . . . . . . . . . . 93
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . 94
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PAGE
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
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THIS INDENTURE, dated as of January 1, 1995 between
NATIONSBANK CORPORATION, a corporation duly organized and
existing under the laws of the State of North Carolina
(hereinafter called the "Company"), and BankAmerica National
Trust Company, a banking corporation duly organized and existing
under the laws of the State of New York (hereinafter sometimes
called the "Trustee", which term shall include any successor
trustee appointed pursuant to Article Seven of this Indenture).
W I T N E S S E T H:
WHEREAS, the Company deems it necessary to issue from time
to time for its lawful purposes securities (hereinafter called
the "Securities") evidencing its unsecured indebtedness and has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of the Securities in one or more series,
unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, and to have such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things
necessary to constitute these presents a valid indenture and
agreement according to its terms have been done and performed,
and the execution of this Indenture has in all respects been duly
authorized, and the Company, in the exercise of legal right and
power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued and received, and in
consideration of the premises, of the purchase and acceptance of
the Securities by the holders thereof and of the sum of One
Dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time
of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section (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. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939 or that are by
reference therein defined in the Securities Act of 1933 shall
have the meanings (except as herein otherwise expressly provided
or unless the context otherwise requires) assigned to such terms
in said Trust Indenture Act of 1939 and in said Securities Act as
in force at the
<PAGE>
date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles
as are generally accepted at the time of any computation. The
words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
Additional Amounts:
The term "Additional Amounts" shall mean any additional
amounts to be paid by the Company in respect of Securities of a
series, as may be specified pursuant to Section 2.03(b) hereof
and in such Security and under the circumstances specified
therein, in respect of specified taxes, assessments or other
governmental charges imposed on certain holders who are United
States Aliens, and which may be owing to such holders as set
forth in Section 4.09 hereof.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper
(which, in the case of the United Kingdom, will, if practicable,
be the Financial Times (London Edition) and, in the case of
Luxembourg, will, if practicable, be the Luxemburger Wort) of
general circulation in the place of publication, published in an
official language of the country of publication and customarily
published at least once a day for at least five days in each
calendar week. Whenever successive weekly publications in an
Authorized Newspaper are authorized or required hereunder, they
may be made (unless otherwise provided herein) on the same or
different days of the week and in the same or different
Authorized Newspapers. If it shall be impractical in the opinion
of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such
notice.
Bearer Security:
The term "Bearer Security" shall mean any Security
established pursuant to Section 2.01 and Section 2.03(b) hereof
which is payable to bearer (including without limitation any
Security in temporary or permanent global bearer form) and title
to which passes by delivery only, but does not include any
coupons.
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Board of Directors:
The term "Board of Directors" or "Board" shall mean the
Board of Directors of the Company or any duly authorized
committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors or by
a committee acting under authority of or appointment by the Board
of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
Business Day:
The term "business day" shall mean, unless otherwise
specified pursuant to Section 2.03(b), with respect to any Place
of Payment or any other particular location referred to in this
Indenture or in the Securities, a day that in the city (or in any
one of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day
on which banking institutions are authorized or required by law
or regulation.
Capital Stock:
The term "Capital Stock" shall mean, as to shares of a
particular corporation, outstanding shares of stock of any class,
whether now or hereafter authorized, irrespective of whether such
class shall be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends and
in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
CEDEL, S.A.:
The term "CEDEL, S.A." shall mean Centrale de Livraison de
Valeurs Mobilieres, S.A., or any successor thereof.
Common Depositary:
The term "Common Depositary" shall have the meaning set
forth in Section 2.08 hereof.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission.
3
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Company:
The term "Company" shall mean the person named as the
"Company" in the first paragraph of this instrument until a
successor corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor corporation.
Company Request, Company Order and Company Consent:
The terms "Company Request", "Company Order" and "Company
Consent" mean, respectively, a written request, order or consent
signed in the name of the Company by its Chairman of the Board,
President, Chief Financial Officer, any Vice President, any
General Counsel or any Associate General Counsel (or any attorney
holding a position equivalent thereto) and by the Treasurer, any
Assistant Treasurer, Secretary or any Assistant Secretary of the
Company, and delivered to the Trustee.
Coupon:
The term "coupon" shall mean any interest coupon
appertaining to a Bearer Security.
Default:
The term "Default" or "default" shall have the meaning
specified in Article Six.
Dollar or $:
The term "Dollar" or "$" shall mean a dollar or other
equivalent unit in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of
public and private debts.
Euroclear:
The term "Euroclear" shall mean Morgan Guaranty Trust
Company of New York, Brussels office, or any successor thereof,
as the operator of the Euroclear System.
Euro Security:
The term "Euro Security" shall mean any Bearer Security, any
Security initially represented by a Security in temporary global
form exchangeable for Bearer Securities and any Security in
permanent global form exchangeable for Bearer Securities.
Event of Default:
The term "Event of Default" shall have the meaning specified
in Article Six.
4
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Exchange Act:
The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
Exchange Date:
The term "Exchange Date" shall have the meaning set forth in
Section 2.08 hereof.
Holder:
The terms "holder," "holder of Securities," "securityholder"
or other similar term shall mean (a) in the case of any
Registered Security, the person in whose name such Security is
registered in the Security Register kept by the Company for that
purpose, in accordance with the terms hereof, and (b) in the case
of any Bearer Security, the bearer thereof, and as used with
respect to any coupon appertaining to any Bearer Security, the
term "holder" shall mean the bearer thereof.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed and delivered or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof,
including without limitation, the forms and terms of particular
series of Securities established as contemplated by Article Two.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman of the Board, President, Chief Financial
Officer, any Vice President, the General Counsel or any Associate
General Counsel (or any attorney holding a position equivalent
thereto) of the Company and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing signed by legal counsel, who may be an employee of or
counsel to the Company and who shall be satisfactory to the
Trustee, or who may be other counsel satisfactory to the Trustee.
Original Issue Discount Securities:
The term "Original Issue Discount Securities" shall mean any
Securities which are initially sold at a discount from the principal
amount thereof and which provide upon an Event of Default
5
<PAGE>
for declaration of an amount less than the principal
amount thereof to be due and payable upon acceleration thereof.
Outstanding:
The term "Outstanding" or "outstanding," when used with
reference to Securities, shall, subject to the provisions of
Section 7.08, Section 8.01 and Section 8.04, mean, as of any
particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set
aside and segregated and held in trust by the Company (if
the Company shall act as its own paying agent) for the
holders of such Securities and any coupons appertaining
thereto; provided, that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as provided
in Article Three, or provision satisfactory to the Trustee
shall have been made for giving such notice;
(c) Securities that have been defeased pursuant to
Section 14.02 hereof; and
(d) Securities that have been paid pursuant to Section
2.09, or Securities in exchange for, in lieu of and in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07, unless proof satisfactory to the Trustee is presented
that any such Securities are held by bona fide holders in
due course.
Periodic Offering:
The term "Periodic Offering" shall mean an offering of
Securities of a series, from time to time, the specific terms of
which (including, without limitation, the rate or rates of
interest or formula for determining the rate or rates of interest
thereon, if any, the maturity date or dates thereof and the
redemption provisions, if any, with respect thereto) are to be
determined by the Company upon the issuance of such Securities.
Person:
The term "Person" or "person" shall mean any individual,
corporation, partnership, joint venture, association, joint stock
6
<PAGE>
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Place of Payment:
The term "Place of Payment," when used with respect to the
Securities of any series, means the place or places where,
subject to the provisions of Section 4.02, the principal of (and
premium, if any, on) and any interest on the Securities of that
series are payable as specified as contemplated by Section
2.03(b).
Possessions:
The term "possessions," when used with respect to the United
States, shall include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and Northern Mariana Islands.
Principal Subsidiary Bank:
The term "Principal Subsidiary Bank" shall mean any
Subsidiary Bank the total assets of which as set forth in the
most recent statement of condition of such Subsidiary Bank equal
more than 10% of the total consolidated assets of the Company and
its subsidiaries as determined from the most recent consolidated
balance sheet of the Company and its subsidiaries. In no event
nor at any time shall NationsBank of Delaware, National
Association be treated as a Principal Subsidiary Bank for
purposes of this Indenture.
Record Date:
The term "record date" as used with respect to any interest
payment date shall have the meaning specified in Section 2.05.
Registered Security:
The term "Registered Security" shall mean any Security
established pursuant to Section 2.01 and Section 2.03(b) which is
registered on the Security Register of the Company.
Responsible Officer:
"Responsible Officer," when used with respect to the
Trustee, shall mean any officer within the Corporate Trust Office
of the Trustee (or any successor group of the Trustee), including
any Vice President, Assistant Vice President, Assistant Secretary
or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also shall mean, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
7
<PAGE>
Securities:
The term "Securities" shall have the meaning set forth in
the preamble of this Indenture.
Securities Act:
The term "Securities Act" shall mean the Securities Act of
1933, as amended.
Security Register and Security Registrar:
The terms "Security Register" and "Security Registrar" shall
have the respective meanings set forth in Section 2.07(a) hereof.
Subsidiary Bank:
The term "Subsidiary Bank" shall mean any subsidiary of the
Company which is a bank or trust company organized and doing
business under any State or Federal law.
Trust Indenture Act of 1939:
Except as otherwise provided in this Indenture, the term
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939, as amended, as in force at the date of this Indenture as
originally executed.
Trustee:
The term "Trustee" shall mean the person identified as
"Trustee" in the first paragraph hereof until the acceptance of
appointment of a successor trustee pursuant to the provisions of
Article Seven, and thereafter shall mean such successor trustee.
United States Alien:
The term "United States Alien" shall mean any person who,
for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign
partnership to the extent that one or more of its members is, for
United States Federal income tax purposes, a foreign corporation,
a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
U.S. Depositary:
The term "U.S. Depositary" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part
in the form of one or more permanent global Securities, the
person designated as U.S. Depositary by the Company pursuant to
Section 2.03(b), which must be a clearing agency registered under the
8
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Exchange Act, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "U.S. Depositary" shall mean or include
each person who is then a U.S. Depositary hereunder, and if at
any time there is more than one such person, "U.S. Depositary" as
used with respect to the Securities of any series shall mean the
U.S. Depositary with respect to the Securities of such series.
Vice President:
The term "Vice President" when used with respect to the
Company or the Trustee shall mean any vice president, whether or
not designated by a number or word or words added before or after
the title "vice president," including any Executive or Senior
Vice President.
Wholly Owned Subsidiary:
The term "Wholly Owned Subsidiary" shall mean any subsidiary
not less than 99% of the Capital Stock of which (other than
shares in the minimum amount required by law to be owned by a
person for the purpose of the qualification of such person to
serve as a director) is owned by the Company or by one or more of
such subsidiaries of the Company or by the Company and one or
more of such subsidiaries of the Company.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series.
Upon the execution of this Indenture, or from time to time
thereafter, Securities up to the aggregate principal amount and
containing terms and conditions from time to time authorized by
or pursuant to a Board Resolution, or in an indenture
supplemental hereto, as set forth in Section 2.03, may be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
make available for delivery said Securities to or upon Company
Order, without any further action by the Company but subject to
the provisions of Section 2.03, or in an indenture supplemental
hereto, as set forth in Section 2.03.
The Securities may be issued in one or more series. The
aggregate principal amount of Securities of all series that may
be authenticated and delivered and outstanding under this
Indenture is not limited. The Securities of a particular series
may be issued up to the aggregate principal amount of Securities
for such series from time to time authorized by or pursuant to a
Board Resolution.
9
<PAGE>
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
[Form of Trustee's Certificate of Authentication]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: _____________________
BankAmerica National Trust Company
as Trustee
By: ________________________________
Authorized Signatory
SECTION 2.03. Form of Securities Generally; Establishment of
Terms of Series.
(a) The Registered Securities, if any, of each series, the
Bearer Securities, if any, of each series and related coupons, if
any, the temporary global Securities of each series, if any, and
the permanent global Securities of each series, if any, shall be
in the forms established from time to time in or pursuant to one
or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in one or more Board
Resolutions, in an Officers' Certificate (to which shall be
attached true and correct copies of the relevant Board
Resolution(s)) detailing such establishment) or established in an
indenture supplemental hereto.
The Securities may be issued in typewritten, printed or
engraved form with such letters, numbers or other marks of
identification or designation (including "CUSIP" numbers, if then
generally in use) and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Securities
may be listed, or to conform to usage. Unless otherwise
specified as contemplated hereinafter, Securities in bearer form
shall have interest coupons attached.
(b) At or prior to the initial issuance of Securities of
any series, the particular terms of Securities of such series
shall be established in or pursuant to one or more Board
Resolutions (and to the extent established pursuant to rather
than set forth in one or more Board Resolutions, in an Officers'
Certificate (to which shall be attached true and correct copies
of the relevant Board
10
<PAGE>
Resolutions(s)) detailing such establishment) or established in an
indenture supplemental hereto, including the following:
(1) the designation of the particular series (which
shall distinguish such series from all other series);
(2) the aggregate principal amount of such series
which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to this
Indenture and except for any Securities which, pursuant to
Section 2.06, are deemed never to have been authenticated
and delivered hereunder);
(3) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with
or without coupons) or both, whether any Securities of the
series are to be issuable initially in temporary global form
with or without coupons and, if so, the name of the Common
Depositary with respect to any such temporary global
Security, and whether any Securities of the series are to be
issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in Section 2.06 and the name of the Common
Depositary or the U.S. Depositary with respect to any such
permanent global Security;
(4) the date as of which any Bearer Securities of such
series and any temporary Security in global form
representing Outstanding Securities of such series shall be
dated, if other than the date of original issuance of the
first Securities of the series to be issued;
(5) the person to whom any interest on any Registered
Security of the series shall be payable, if other than the
person in whose name that Security (or one or more
predecessor Securities) is registered at the close of
business on the regular record date for such interest, the
manner in which, or the person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, the extent to
which, or the manner in which, any interest payable on a
temporary global Security on an interest payment date will
be paid if other than in the manner provided in Section 2.08
and the extent to which, or the manner in which, any
interest payable on a permanent global Security on an
interest payment date will be paid;
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(6) the date or dates on which the principal of the
Securities of such series is payable;
(7) the rate or rates, and if applicable the method
used to determine the rate, at which the Securities of such
series shall bear interest, if any, the date or dates from
which such interest shall accrue, the date or dates on which
such interest shall be payable and the record date or dates
for the interest payable on any Registered Securities on any
interest payment date;
(8) the place or places at which, subject to the
provisions of Section 4.02, the principal of (and premium,
if any, on) and any interest on Securities of such series
shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(9) the obligation, if any, of the Company to redeem
or purchase Securities of such series, at the option of the
Company or at the option of a holder thereof, pursuant to
any sinking fund or other redemption provisions and the
period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the
series may be so redeemed or purchased, in whole or in part;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of such series shall be issuable, and
the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than
the denomination of $5,000;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series
which shall be payable upon declaration of acceleration of
the maturity thereof;
(12) the currency, currencies or currency units in
which payment of the principal of (and premium, if any, on)
and any interest on any Securities of the series shall be
payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof
in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 1.01;
(13) if the principal of (and premium, if any, on) or
any interest on the Securities of the series are to be
payable, at the election of the Company or a holder thereof,
in one or more currencies or currency units, other than that
or those in which the Securities are stated to be payable,
the currency or
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currencies in which payment of the principal
of (and premium, if any, on) and any interest on Securities
of such series as to which such election is made shall be
payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(14) if the amount of payments of principal of (and
premium, if any, on) or any interest on the Securities of
the series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(15) whether the Securities will be issued in book-
entry only form;
(16) any interest rate calculation agents, exchange
rate calculation agents or other agents with respect to
Securities of such series;
(17) if either or both of Sections 14.02 and 14.03 do
not apply to the Securities of the series;
(18) whether and under what circumstances the Company
will pay Additional Amounts in respect of any series of
Securities and whether the Company has the option to redeem
such Securities rather than pay such Additional Amounts;
(19) any provisions relating to the extension of
maturity of, or the renewal of, Securities of such series,
or the conversion of Securities of such series into other
securities of the Company; and
(20) any other terms of the Securities of such series
(which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series need not be issued at the
same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as
set forth in an indenture supplemental hereto, and, unless
otherwise provided, the authorized principal amount of any series
may be increased to provide for issuances of additional
Securities of such series. If so provided by or pursuant to the
Board Resolution or Officers' Certificate or supplemental
indenture referred to above, the terms of such Securities to be
issued from time to time may be determined as set forth in such
Board Resolution, Officers' Certificate or supplemental
indenture, as the case may be. All Securities of any one series
shall be substantially identical except as to denomination,
interest rate, maturity and other similar terms and except as may
otherwise be provided by or pursuant to such Board Resolution,
Officers' Certificate or supplemental indenture.
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SECTION 2.04. Securities in Global Form.
If Securities of a series are issuable in global form, as
specified as contemplated by Section 2.03(b), then,
notwithstanding clause (10) of Section 2.03(b) and the provisions
of Section 2.05, any such Security in global form shall represent
such of the Securities of such series Outstanding as shall be
specified therein, and any such Security in global form may
provide that it shall represent the aggregate amount of
Securities Outstanding from time to time endorsed thereon and
that the aggregate amount of Securities Outstanding represented
thereby may from time to time be reduced to reflect any exchanges
of beneficial interests in such Security in global form for
Securities of such series as contemplated herein. Any
endorsement of a Security in global form to reflect the amount,
or any decrease in the amount, of Securities Outstanding
represented thereby shall be made by the Trustee or the Security
Registrar in such manner and upon instructions given by such
person or persons as shall be specified in such Security in
global form or in the Company Order to be delivered to the
Trustee pursuant to Section 2.06 or Section 2.08. Subject to the
provisions of Section 2.06 and, if applicable, Section 2.08, the
Trustee or the Security Registrar shall deliver and redeliver any
Security in permanent global form in the manner and upon
instructions given by the person or persons specified in such
Security in global form or in the applicable Company Order. If a
Company Order pursuant to Section 2.06 or 2.08 has been, or
simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not be
represented by a Company Order and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 2.06 shall
apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the
Company delivers to the Trustee or the Security Registrar the
Security in global form together with written instructions (which
need not be represented by a Company Order and need not be
accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 2.06.
Notwithstanding the provisions of Section 2.05, unless
otherwise specified as contemplated by Section 2.03(b), payment
of principal of and any premium and interest on any Security in
permanent global form shall be made to the persons or persons
specified therein.
SECTION 2.05. Denominations; Record Date; Payment of Interest.
(a) Unless otherwise provided as contemplated by Section
2.03(b) with respect to any series of Securities, any Registered
Securities of a series shall be issuable without coupons in
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denominations of $1,000 and any Bearer Securities of a series
shall be issuable, with interest coupons attached, in the
denomination of $5,000.
(b) The term "record date" as used with respect to an
interest payment date for any series of a Registered Security
shall mean such day or days as shall be specified as contemplated
by Section 2.03(b); provided, however, that in the absence of any
such provisions with respect to any series, such term shall mean
(1) the last day of the calendar month next preceding such
interest payment date if such interest payment date is the
fifteenth day of a calendar month; or (2) the fifteenth day of a
calendar month next preceding such interest payment date if such
interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated by Section 2.03(b)
with respect to any series of Securities, the person in whose
name any Registered Security is registered at the close of
business on the record date with respect to an interest payment
date shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Security upon any registration of transfer or exchange thereof
subsequent to such record date and prior to such interest payment
date; provided, however, that if and to the extent the Company
shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid to the
persons in whose names the Securities are registered on a
subsequent record date established by notice given to the extent
and in the manner set forth in Section 15.04 by or on behalf of
the Company to the holders of Securities of the series in default
not less than 15 days preceding such subsequent record date, such
record date to be not less than five days preceding the date of
payment of such defaulted interest, or in any other lawful manner
acceptable to the Trustee.
(c) Unless otherwise specified by Board Resolution or
Company Order for a particular series of the Securities, the
principal of, redemption premium, if any, on and interest, if
any, on the Securities of any series shall be payable at the
office or agency of the Company maintained pursuant to Section
4.02 in a Place of Payment for such series, in New York Clearing
House funds; provided, however, that, at the option of the
Company, payment of interest with respect to a Registered
Security may be paid by check mailed to the holders of the
Registered Securities entitled thereto at their last addresses as
they appear on the Security Register.
SECTION 2.06. Execution, Authentication, Delivery and Dating of
Securities.
The Securities shall be signed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents under its corporate seal and attested by its Secretary
or one of its Assistant Secretaries. Such signatures may be the
manual or facsimile signatures of the current or any future such officers.
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The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Coupons shall bear the
facsimile signature of the Secretary or one of the Assistant
Secretaries of the Company or such other officer of the Company
as may be specified pursuant to Section 2.03(b). Any Security or
coupon may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Security, shall be
the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such officer.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were, at the actual date of the execution of
such Security or coupon, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities, or the delivery of such coupons,
as the case may be, or did not hold such offices at the date of
such Securities.
Upon the execution and delivery of this Indenture, the
Company shall deliver to the Trustee an Officers' Certificate as
to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and coupons and give
instructions under this Section and, as long as Securities are
Outstanding under this Indenture, shall deliver a similar
Officers' Certificate each year on the anniversary of the date of
the first such Officers' Certificate. The Trustee may
conclusively rely on the documents delivered pursuant to this
Section (unless revoked by superseding comparable documents) and
Section 2.03 hereof as to the authorization of the Board of
Directors of any Securities delivered hereunder, and the form and
terms thereof, and as to the authority of the instructing
officers referred to in this Section so to act.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in an unlimited
aggregate principal amount upon receipt by the Trustee of a
Company Order; provided, however, that with respect to Securities
of a series subject to a Periodic Offering, (a) such Company
Order may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery,
(b) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount, if
any, established for such series, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the maturity
date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be
determined by Company Order or pursuant to such procedures, and
(d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing; and provided further, however, that
definitive Euro Securities may only be
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delivered at an office or agency outside the United States and
its possessions in exchange for a portion of a Euro Security in
temporary global form of equal aggregate principal amount and series
and only if (x) prior to such delivery, the owner of such Euro
Security or a financial institution or clearing organization through
which the owner holds such Euro Security, directly or indirectly,
shall have furnished a certificate in the form set forth in Exhibit A.1
to this Indenture, dated no earlier than 15 days prior to the date
on which Euroclear or CEDEL S.A., as the case may be, furnishes
to the Common Depositary, in accordance with the procedures
established in Section 2.08, a certificate in the form set forth
in Exhibit A.2 to this Indenture that relates to all or such
portion of such temporary global Security, and (y) the person to
whom such certificate is provided does not know or have reason to
know that the information contained in such certificate is false.
If any Euro Security initially represented by a portion of a
temporary global Security is exchanged for a portion of a
permanent global Security in equal aggregate principal amount and
series, then, for purposes of this Section and Section 2.08, the
notation of a beneficial owner's interest therein upon exchange
shall be deemed to be delivery of definitive Euro Securities
representing such beneficial owner's interest. Except as
permitted by Section 2.09, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any new series and
any related coupons, and the authentication thereof by the
Trustee, the Trustee shall have received and (subject to Section
7.02) shall be fully protected in relying on:
(i) The Board Resolution or Officers' Certificate or
indenture supplemental hereto establishing the terms and the
form of the Securities of that series pursuant to Sections
2.01 and 2.03;
(ii) An Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the authentication and delivery of Securities in such
form have been complied with;
(iii) An Opinion of Counsel stating that: (1) the form
and terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution in
conformity with the provisions of this Indenture; (2)
Securities in such form, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture, and sold in the manner
specified in such Opinion of Counsel, will be valid and
legally binding obligations of the Company and enforceable
in accordance with their terms, subject to applicable
bankruptcy, reorganization, fraudulent conveyance, insolvency,
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moratorium and other similar laws affecting the
rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C. (section
mark) 1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy; (3) all laws and
requirements in respect of the execution and delivery by the
Company of the Securities and coupons, if any, have been
complied with and that authentication and delivery of the
Securities by the Trustee will not violate the terms of the
Indenture; and (4) such other matters as the Trustee may
reasonably request; provided, however, that with respect to
Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication of Securities of such series and that the
opinions described in clauses (1) and (2) above may state,
respectively, (x) that when certain terms of such Securities
and coupons, if any, have been established pursuant to a
Board Resolution, Officers' Certificate or an indenture
supplemental hereto pursuant to Section 2.03(b) hereof, and
when such other terms as are to be established pursuant to
procedures set forth in a Company Order shall have been
established, all such terms will have been duly authorized
by the Company and will have been established in conformity
with the provisions of this Indenture; and (y) that
Securities in such Series, when (A) executed by the Company,
(B) completed, authenticated and delivered by the Trustee in
accordance with this Indenture, (C) issued and delivered by
the Company and (D) paid for, all as contemplated by and in
accordance with the Company Order or specified procedures,
as the case may be, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy,
reorganization, fraudulent conveyance, insolvency,
moratorium and other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement
of remedies and further subject to 12 U.S.C. (section
mark) 1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and
of any coupons and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to this Section in connection with
the first authentication of Securities of such series unless and
until such Opinion of Counsel or other documents have been
superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to
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authenticate and deliver such Securities do not violate any rules,
regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
Each Registered Security shall be dated the date of its
authentication except as otherwise provided by Board Resolution
or Officers' Certificate or indenture supplemental hereto; and
each Bearer Security shall be dated as of the date of original
issuance of the first Security of such series to be issued unless
otherwise specified pursuant to Section 2.03(b) hereof.
The aggregate principal amount of Securities of any series
outstanding at any time may not exceed any limit upon the maximum
principal amount for such series set forth in or pursuant to the
Board Resolution or Officers' Certificate or indenture
supplemental hereto delivered pursuant to Section 2.03, except as
provided in Section 2.08.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 2.09 together
with a written statement stating that such Security has never
been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration of Transfer of
Securities.
(a) The Company shall keep, at an office or agency to be
designated and maintained by the Company in accordance with
Section 4.02 (as such, a "Security Registrar"), registry books
(the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register
Registered Securities and shall register the transfer of
Registered Securities of each such series as provided in this
Article Two. Such Security Register shall be in written form or
in any other form capable of being converted into written form
within a reasonable time. At all reasonable times such Security
Register shall be open for inspection by the Trustee. Upon due
presentment for registration of transfer of any Registered
Security of a particular series at such office or agency
maintained pursuant to Section 4.02 for such purpose in a Place
of Payment, the Company
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shall execute and register and the Trustee shall authenticate and make
available for delivery in the name of the transferee or transferees a
new Registered Security or Registered Securities of such series of any
authorized denominations and for an equal aggregate principal amount and
tenor.
(b) At the option of the holder, Registered Securities of
any series may be exchanged for other Registered Securities of
the same series of any authorized denominations and of an equal
aggregate principal amount and tenor. Registered Securities to
be exchanged shall be surrendered at any such office or agency
maintained pursuant to Section 4.02 for such purpose in a Place
of Payment, and the Company shall execute and register and the
Trustee shall authenticate and make available for delivery in
exchange therefor the Security or Securities that the
securityholder making the exchange shall be entitled to receive.
Registered Securities, including Registered Securities received
in exchange for Bearer Securities, may not be exchanged for
Bearer Securities, unless the Company otherwise expressly
provides for the issuance, upon such terms and conditions as may
be provided with respect to such series, by the Company of
Registered Securities of a series that may be exchanged, at the
option of the securityholder upon such conditions and limitations
as may be specified by the Company, for Bearer Securities of such
series.
At the option of the holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of
any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured
coupons (except as provided below) and with all matured coupons
in default appertaining thereto. If the holder of a Bearer
Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, such exchange
may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company 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 is furnished to them such
security or indemnity as they may require to save each of them
and any paying agent harmless. If thereafter the holder of such
Securities 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 4.02, 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 and its
possessions. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series
and like tenor after the close of business at such office or
agency on (i) any record date and before the opening of business
at such office or agency on the relevant interest payment date,
or (ii) any special record date and
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before the opening of business at such office or agency on the related
proposed date for payment of defaulted interest as set forth in
Section 2.05, such Bearer Security shall be surrendered without the
coupon relating to such interest payment date or proposed date for
payment, as the case may be, and interest or defaulted interest,
as the case may be, will not be payable on such interest payment
date or proposed date for payment, as the case may be, in respect
of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute and register, and the Trustee shall
authenticate and make available for delivery, the Securities
which the holder making the exchange is entitled to receive.
(c) All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
All Registered Securities presented for registration of
transfer or for exchange, redemption or payment, as the case may
be, shall (if so required by the Company or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and
the Trustee or the Security Registrar duly executed by, the
holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith,
other than exchanges pursuant to the terms of this Indenture not
involving any transfer.
The Company shall not be required (1) to issue, to exchange
or register the transfer of Securities of any series to be
redeemed for a period of 15 days next preceding any selection of
such Securities to be redeemed, or (2) to exchange or register
the transfer of any Registered Security so selected, called or
being called for redemption, except in the case of any such
series to be redeemed in part the portion thereof not to be so
redeemed, or (3) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged
for a Registered Security of that series and of like tenor,
provided that such Registered Security shall be simultaneously
surrendered for redemption.
(d) Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 2.03(b), any permanent global
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Security shall be exchangeable pursuant to this Section
only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange
such interests for Securities of such series and of like tenor
and principal amount of another authorized form and denomination,
as specified as contemplated by Section 2.03(b), then without
unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company
shall deliver to the Trustee or the Security Registrar definitive
Securities of that series in aggregate principal amount equal to
the principal amount of such permanent global Security executed
by the Company. On or after the earliest date on which such
interests may be so exchanged, in accordance with instructions
given by the Company to the Trustee or the Security Registrar and
the Common Depositary or the U.S. Depositary, as the case may be
(which instructions shall be in writing), such permanent global
Security shall be surrendered from time to time by the Common
Depositary or the U.S. Depositary, as the case may be, or such
other depositary or Common Depositary or U.S. Depositary, as the
case may be, as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole
or in part, for definitive Securities of the same series without
charge and the Trustee shall authenticate and make available for
delivery in accordance with such instructions, in exchange for
each portion of such permanent global Security, a like aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which (unless the
Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, in which case the
definitive Securities exchanged for the permanent global Security
shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.03(b)), shall
be in the form of Bearer Securities or Registered Securities, or
any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may
occur for a period of 15 days next preceding any selection of
Securities of that series and of like tenor for redemption; and
provided, further, that no Bearer Security delivered in exchange
for a portion of a permanent global security shall be mailed or
otherwise delivered to any location in the United States or its
possessions. Promptly following any such exchange in part, such
permanent global Security should be returned by the Trustee or
the Security Registrar to the Common Depositary or the U.S.
Depositary, as the case may be, or such other depositary or
Common Depositary or U.S. Depositary referred to above in
accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on
(i) any record date and before the opening of business at such
office or agency on the relevant interest payment date, or (ii) any
special record date and before the opening of business at such office or
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agency on the related proposed date for payment of
defaulted interest as provided in Section 2.05, interest or
defaulted interest, as the case may be, will not be payable on
such interest payment date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be
payable on such interest payment date or proposed date for
payment, as the case may be, only to the person to whom interest
in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
SECTION 2.08. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute and the Trustee shall, upon
Company Order, authenticate and make available for delivery,
temporary Securities of such series (typewritten, printed,
lithographed or otherwise produced). Such temporary Securities,
in any authorized denominations, shall be substantially in the
form of the definitive Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer form with
one or more or without coupons, in the form approved from time to
time by or pursuant to a Board Resolution but with such
omissions, insertions, substitutions and other variations as may
be appropriate for temporary Securities, all as may be determined
by the Company, but not inconsistent with the terms of this
Indenture or any provision of applicable law. In the case of any
series issuable as Bearer Securities, such temporary Securities
shall be delivered only in compliance with the conditions set
forth in Section 2.06 and may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged as hereinafter provided), if temporary
Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series
at the office or agency of the Company maintained pursuant to
Section 4.02 in a Place of Payment for such series for the
purpose of exchanges of Securities of such series, without charge
to the holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of
authorized denominations; provided, however, that, except as
otherwise expressly provided by the Company as contemplated in
Section 2.07(b), no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided
further, however, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 2.06.
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All Euro Securities shall be issued initially in the form of
a temporary global Security and any such temporary global
Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefits of Euroclear and CEDEL
S.A., for credit to the respective accounts for the beneficial
owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of,
any such temporary global Security of a series (the "Exchange
Date"), the Company shall deliver to the Trustee definitive
Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed
by the Company. On or after the Exchange Date such temporary
global Security shall be presented and surrendered by the Common
Depositary to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole
or from time to time in part, for definitive Securities of such
series without charge, and the Trustee shall authenticate and
make available for delivery, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary
global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global
Security must be accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account
then to be exchanged and a certificate dated the Exchange Date or
a subsequent date and signed by CEDEL S.A. as to the portion of
such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A.2 to this
Indenture. The definitive Securities to be delivered in exchange
for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 2.03(b), and, if any combination thereof
is so specified, as requested by the beneficial owner thereof;
provided, however, that definitive Securities shall be delivered
in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 2.06.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
definitive Securities of the same series and of like tenor upon
the receipt by Euroclear or CEDEL S.A., as the case may be, after
the Exchange Date of a certificate in the form set forth in
Exhibit A.1 to this Indenture (whether or not such certificate is
delivered in connection with the payment of interest, as hereinafter
provided) signed by the owner of the Security or a financial institution
or clearing organization through which the owner directly or
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indirectly holds such Security, and dated no
earlier than 15 days prior to the date on which Euroclear or
CEDEL S.A., as the case may be, furnishes to the Common
Depositary in accordance with the preceding paragraph a
certificate in the form set forth in Exhibit A.2 to this
Indenture that relates to the interest to be exchanged for
definitive Securities. Copies of the certificate in the form set
forth in Exhibit A.1 to this Indenture shall be available from
the offices of Euroclear and CEDEL S.A., the Trustee, any
authenticating agent appointed for such series of Securities and
each paying agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary global Security,
except that a person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in
the event that such person does not take delivery of such
definitive Securities in person at the offices of Euroclear or
CEDEL S.A. Definitive Securities to be delivered in exchange for
any portion of a temporary global Security shall be delivered
only outside the United States and its possessions.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 2.03(b), interest payable on a temporary
global Security on any interest payment date for Securities of
such series occurring prior to the exchange of such temporary
global Security shall be payable to Euroclear and CEDEL S.A. on
such interest payment date upon delivery by Euroclear and CEDEL
S.A. to the Trustee or the applicable paying agent of a
certificate or certificates in the form set forth in Exhibit A.3
to this Indenture, for credit without further interest on or
after such interest payment date to the respective accounts of
the persons for whom Euroclear or CEDEL S.A., as the case may be,
holds such temporary global Security on such interest payment
date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form set forth in Exhibit
A.1 to this Indenture. If such interest payment date occurs on
or after the Exchange Date, Euroclear or CEDEL S.A., as the case
may be, following the receipt of such certificate shall exchange,
in accordance with the procedures hereinabove provided, the
portion of the temporary global Security that relates to such
certificate for definitive Securities (which, in the absence of
instructions to the contrary, shall be an interest in a permanent
global Security). Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee or the applicable paying agent immediately prior to
the expiration of two years after such interest payment date in
order to be repaid to the Company in accordance with Section
12.04.
The terms and form of the certificates to be delivered
hereunder, and procedures established with respect thereto, are
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intended to ensure that (i) interest payable by the Company on
Securities of a series issuable in bearer form is deductible by
the Company under Section 163(f) of the Internal Revenue Code of
1986, as may be amended from time to time, or any successor
provision and (ii) the Company meets the requirements, if any,
established by Euroclear or CEDEL S.A. from time to time, and any
such certificates or the procedures with respect thereto may be
amended or modified by the Company upon delivery of a Company
Order to the Trustee accompanied by an Opinion of Counsel to the
effect that the proposed modification or amendment will effect
continued compliance by the Company with provisions of such Code
or Euroclear or CEDEL S.A., as the case may be.
Every temporary 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 Securities.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities
and Coupons.
If any mutilated Security or a Security with a mutilated
coupon appertaining thereto is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the
same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security or coupon; provided, however, that
principal of (and premium, if any, on) and any interest on Bearer Securities
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shall, except as otherwise provided in Section 4.02, be payable only at
an office or agency located outside the United States and its possessions.
Upon the issuance of any new Security under this Section,
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or in exchange for a
Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security and any coupons appertaining thereto, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Cancellation.
All Securities surrendered for payment, redemption, exchange
or registration of transfer or for credit against any sinking
fund payment, as the case may be, and any coupons surrendered for
payment, shall, if surrendered to the Company or any agent of the
Company or of the Trustee, be delivered to the Trustee. All
Registered Securities and matured coupons so delivered shall be
promptly cancelled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be held by the Trustee, and
upon instruction by a Company Order, shall be cancelled or held
for reissuance. All Bearer Securities and unmatured coupons held
by the Trustee pending such cancellation or reissuance shall be
deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may deliver to the
Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section except as expressly
provided by this Indenture. Any cancelled Securities and coupons
held by the Trustee shall be
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delivered to the Company or disposed of as directed by the Company;
provided, however, that the Trustee may, but shall not be required to,
destroy such Securities.
SECTION 2.11. Book-Entry Only System.
If specified by the Company pursuant to Section 2.03(b) with
respect to Securities represented by a Security in global form, a
series of Securities may be issued initially in book-entry only
form and, if issued in such form, shall be represented by one or
more Securities in global form registered in the name of the U.S.
or Common Depositary or other depositary designated with respect
thereto. So long as such system of registration is in effect,
(a) Securities of such series so issued in book-entry only form
will not be issuable in the form of or exchangeable for
Securities in certificated or definitive registered form, (b) the
records of the U.S. or Common Depositary or such other depositary
will be determinative for all purposes and (c) neither the
Company, the Trustee nor any paying agent, Security Registrar or
transfer agent for such Securities will have any responsibility
or liability for (i) any aspect of the records relating to or
payments made on account of owners of beneficial interests in the
Securities of such series, (ii) maintaining, supervising or
reviewing any records relating to such beneficial interests,
(iii) receipt of notices, voting and requesting or directing the
Trustee to take, or not to take, or consenting to, certain
actions hereunder, or (iv) the records and procedures of the U.S.
or Common Depositary, or such other depositary, as the case may
be.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability of
Section.
Redemption of Securities of any series as permitted or
required by the terms thereof shall be made in accordance with
the terms of such Securities as specified pursuant to Section
2.03(b) hereof and this Article; provided, however, that if any
provision of any series of Securities shall conflict with any
provision of this Section, the provision of such series of
Securities shall govern.
SECTION 3.02. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to
redeem all or, as the case may be, any part of a series of
Securities pursuant to Section 3.01, it shall fix a date for
redemption. Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company, or, at
the Company's request, by the Trustee in the name and at the
expense of the Company. The Company or the Trustee, as the case
may be, shall give notice of such redemption, in the manner and to
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the extent set forth in Section 15.04, at least 30 and not
more than 60 days prior to the date fixed for a redemption to the
holders of such Securities so to be redeemed as a whole or in
part. Notice given in such manner 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 such Security designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other such Security.
If the Company requests the Trustee to give any notice of
redemption, it shall make such request at least ten days prior to
the designated date for delivering such notice, unless a shorter
period is satisfactory to the Trustee.
Each such notice of redemption shall specify the date fixed
for redemption, the redemption price at which such Securities are
to be redeemed, the CUSIP numbers of such Securities, the Place
of Payment where such Securities, together, in the case of Bearer
Securities, with all coupons appertaining thereto, if any,
maturing after the date of redemption, are to be surrendered for
payment of the redemption prices, that payment will be made upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all of a series is to be redeemed,
the notice of redemption shall specify the numbers of the
Securities to be redeemed. In case any Security 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, upon surrender of such Security, a new Security or
Securities of the same series in principal amount equal to the
unredeemed portion thereof will be issued.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will
deposit in trust with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption
date all the Securities or portions of Securities so called for
redemption at the appropriate redemption price, together with
accrued interest, if any, to the date fixed for redemption. If
less than all of a series of Securities is to be redeemed, the
Company will give the Trustee adequate written notice at least 45
days in advance (unless a shorter notice shall be satisfactory to
the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a series is to be
redeemed, the Trustee shall select, pro rata or by lot or in such
other manner is it shall deem appropriate and fair, not more than
60 days prior to the date of redemption, the numbers of such
Securities Outstanding not previously called for redemption, to
be redeemed in whole or in part. The portion of principal of Securities
so selected for partial redemption shall be equal to the minimum
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authorized denomination for Securities of that series
or any integral multiple thereof. The Trustee shall promptly
notify the Company of the Securities to be redeemed. If,
however, less than all the Securities of a series having
differing issue dates, interest rates and stated maturities are
to be redeemed, the Company in its sole discretion shall select
the particular Securities of such series to be redeemed and shall
notify the Trustee in writing at least 45 days prior to the
relevant redemption date.
SECTION 3.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided,
the Securities or portions of Securities with respect to which
such notice has been given shall become due and payable on the
date and at the place 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 Securities at the
redemption price, together with interest accrued to said date)
interest on such Securities or portions of Securities so called
for redemption shall cease to accrue and the coupons, if any, for
such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. On
presentation and surrender of such Securities subject to
redemption at the Place of Payment and in the manner specified in
such notice, together with all coupons, if any, appertaining
thereto and maturing after the date specified in such notice for
redemption, such Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption; provided, however, that installments
of interest on Bearer Securities whose stated maturity date is on
or prior to the date of redemption shall be payable only at an
office or agency located outside the United States and its
possessions (except as otherwise provided in Section 4.02) and,
unless otherwise specified as contemplated by Section 2.03(b),
only upon presentation and surrender of coupons for such
interest; and provided, further, that unless otherwise specified
as contemplated by Section 2.03(b), installments of interest on
Registered Securities whose stated maturity date is on or prior
to the date of redemption shall be payable to the holders of such
Registered Securities, or one or more predecessor Securities,
registered as such at the close of business on the relevant
record dates according to their terms and the provisions of
Section 2.05. At the option of the Company, payment with
respect to Registered Securities may be made by check to the
holders of such Securities or other persons entitled thereto
against presentation and surrender of such Securities.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the date
of redemption, such Security may be paid after deducting from the
redemption price an amount equal to the face amount of all such
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missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If
thereafter the holder of such Security shall surrender to the
Trustee or any paying agent any such missing coupon in respect of
which a deduction shall have been made from the redemption price,
such holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States and its possessions (except as otherwise provided in
Section 4.02) and, unless otherwise specified as contemplated by
Section 2.03(b), only upon presentation and surrender of those
coupons.
Any Security (including any coupons appertaining thereto)
that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder's attorney duly authorized
in writing), and upon such presentation, the Company shall
execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a
new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the
unredeemed portion of the principal of the Security so presented.
If a temporary global Security or permanent global Security is so
surrendered, such new Security so issued shall be a new temporary
global Security or permanent global Security, respectively.
SECTION 3.04. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all
Securities then outstanding are to be redeemed) or commence the
giving of any notice or redemption of Securities during the
continuance of any Event of Default of which a Responsible
Officer of the Trustee has actual knowledge or notice, except
that where the giving of notice of redemption of any Securities
shall theretofore have been made, the Trustee shall redeem such
Securities, provided funds are deposited with it for such
purpose. Except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance
of such Event of Default, be held in trust for the benefit of the
securityholders and applied in the manner set forth in Section
6.06; provided, however, that in case such Event of Default shall
have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with
the provisions of this Article.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any, on) and any interest on
each of the Securities of a series at the place, at the
respective times and in the manner provided in the terms of the
Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 2.03(b)
with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on
or before maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
SECTION 4.02. Offices for Notices and Payments, etc.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment
for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City of New York (or in such other
place or places in the United States as the Company may designate
from time to time by Company Order delivered to the Trustee), an
office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the
circumstances described below (and not otherwise), (B) subject to
any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States and
its possessions, an office or agency where Securities of that
series and related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 4.09); provided,
however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the
Republic of Ireland, Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and
its possessions and such stock exchange shall so require, the
Company will maintain a paying agent for the Securities of that
series in London, Luxembourg or any other required city located
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outside the United States and its possessions, as the case may
be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States and its possessions, an office or
agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served.
The Company will give to the Trustee notice of the location
of each such office or agency and of any change in the location
thereof. In case the Company shall fail to maintain any such
office or agency as required, or shall fail to give such notice
of the location or of any change in the location thereof,
presentations and surrenders of Securities of that series may be
made and notices and demands may be served at the principal
corporate trust office of the Trustee, except that Bearer
Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series
pursuant to Section 4.09) at any paying agent for such series
located outside the United States and its possessions or, if none
have been so appointed, then at the London office of the Trustee,
and the Company hereby appoints the same as its agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company
in the United States or its possessions or by check mailed to any
address in the United States or its possessions or by transfer to
any account maintained with a financial institution located in
the United States or its possessions; provided, however, that, if
the Securities of a series are denominated and payable in
Dollars, payment of principal of (and premium, if any) and any
interest on any Bearer Security (including any Additional Amounts
payable on Securities of such series pursuant to Section 4.09)
shall be made at the office of the Company's paying agent in the
Borough of Manhattan, The City of New York (or in such other
place or places in the United States as the Company may designate
from time to time by Company Order delivered to the Trustee), if
(but only if) payment in Dollars of the full amount of such
principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States and
its possessions maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
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however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee and the
holders of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby initially designates the principal
corporate trust office of BankAmerica National Trust Company as
the office of the Company in the Borough of Manhattan, the City
of New York, where Registered Securities may be presented for
payment, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be
served.
SECTION 4.03. Provisions as to Paying Agent.
(a) Whenever the Company shall appoint a paying agent other
than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that it will hold sums held by it as such agent
for the payment of the principal of (and premium, if any,
on) or any interest on the Securities of such series
(whether such sums have been paid to it by the Company or by
any other obligor on the Securities of such series) in trust
for the benefit of the persons entitled thereto until such
sums shall be paid to such persons or otherwise disposed of
as herein provided and will notify the Trustee of the
receipt of sums to be so held;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Securities of such series) to make any payment of the
principal of (or premium, if any, on) or any interest on the
Securities of such series when the same shall be due and
payable; and
(3) that at any time when any such failure has
occurred and is continuing, it will, upon the written
request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying 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 any interest on the Securities of any series,
set aside, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay such principal
(and premium, if any) or any interest so becoming due until such
sums shall be paid to such persons or otherwise disposed of as
herein provided. The
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Company will promptly notify the Trustee of any failure to take
such action.
(c) Whenever the Company shall have one or more paying
agents with respect to a series of Securities, it will, on or
prior to each due date of the principal of (and premium, if any,
on) or any interest on, any Securities, deposit with a paying
agent a sum sufficient to pay the principal (and premium, if any)
or any interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(d) Anything in this Section to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture with
respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for such series by it or any paying agent
hereunder as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained, and upon such
payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such
money.
(e) Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 12.03
and 12.04.
SECTION 4.04. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, commencing with
the fiscal year ending in the year during which the first series
of Securities is issued hereunder (but in no event more than one
year from the issuance of the first series hereunder), a written
statement signed by the Chairman of the Board, President or other
principal executive officer and by the Treasurer or other
principal financial officer or principal accounting officer of
the Company, stating, as to each signer thereof, that:
(a) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision; and
(b) to the best of his knowledge, based on such
review, the Company has fulfilled all its obligations under
this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and
status thereof.
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SECTION 4.05. Corporate Existence.
Subject to the provisions of Article Eleven, the Company
will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises and the corporate
existence and rights (charter and statutory) and franchises of
its subsidiaries; provided, however, that the Company shall not
be required to, or to cause any subsidiary to, preserve any right
or franchise or to keep in full force and effect the corporate
existence of any subsidiary if the Company shall determine that
the keeping in existence or preservation thereof is no longer
desirable in or consistent with the conduct of the business of
the Company.
SECTION 4.06. Limitation on Sale or Issuance of Capital Stock of
a Principal Subsidiary Bank.
Subject to the provisions of Article Eleven, the Company
will not sell, assign, transfer or otherwise dispose of, or
permit the issuance of, or permit a subsidiary to sell, assign,
transfer or dispose of, any shares of Capital Stock of, or any
securities convertible into or options, warrants or rights to
subscribe for or purchase shares of, Capital Stock of, any
Principal Subsidiary Bank or any subsidiary which owns shares of
Capital Stock of, or any securities convertible into or options,
warrants or rights to subscribe for or purchase shares of Capital
Stock of, any Principal Subsidiary Bank, except:
(1) any sale, assignment, transfer or other
disposition or issuance made, in the minimum amount required
by law, to any person for the purpose of the qualification
of such person to serve as a director; or
(2) any sale, assignment, transfer or other
disposition or issuance for not less than fair market value
(as determined by the Board of Directors, such determination
being evidenced by a Board Resolution, which determination
shall be conclusive), if, after giving effect to such
disposition and to conversion of any shares or securities
convertible into Capital Stock of a Principal Subsidiary
Bank, the Company would own directly or indirectly not less
than 80% of each class of the Capital Stock of such
Principal Subsidiary Bank (or any successor corporation
thereto); or
(3) any sale, assignment, transfer or other
disposition or issuance made in compliance with an order of
a court or regulatory authority of competent jurisdiction;
or
(4) any sale by a Principal Subsidiary Bank (or any
successor corporation thereto) of additional shares of its
Capital Stock to its stockholders at any price, so long as (1)
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prior to such sale the Company owns, directly or
indirectly, shares of the same class and (2) immediately
after such sale, the Company owns, directly or indirectly,
at least as great a percentage of each class of Capital
Stock of such Principal Subsidiary Bank as it owned prior to
such sale of additional shares; or
(5) any sale by a Principal Subsidiary Bank (or any
successor corporation thereto) of additional securities
convertible into shares of its Capital Stock to its
stockholders at any price, so long as (1) prior to such sale
the Company owns, directly or indirectly, securities of the
same class and (2) immediately after such sale the Company
owns, directly or indirectly, at least as great a percentage
of each class of such securities convertible into shares of
Capital Stock of such Principal Subsidiary Bank as it owned
prior to such sale of additional securities; or
(6) any sale by a Principal Subsidiary Bank (or any
successor corporation thereto) of additional options,
warrants or rights to subscribe for or purchase shares of
its Capital Stock to its stockholders at any price, so long
as (1) prior to such sale the Company owns, directly or
indirectly, options, warrants or rights, as the case may be,
of the same class and (2) immediately after such sale, the
Company owns, directly or indirectly, at least as great a
percentage of each class of such options, warrants or
rights, as the case may be, to subscribe for or purchase
shares of Capital Stock of a Principal Subsidiary Bank as it
owned prior to such sale of additional options, warrants or
rights; or
(7) any issuance of shares of Capital Stock, or
securities convertible into or options, warrants or rights
to subscribe for or purchase shares of Capital Stock, of a
Principal Subsidiary Bank or any subsidiary which owns
shares of Capital Stock, or securities convertible into, or
options, warrants or rights to acquire Capital Stock of any
Principal Subsidiary Bank to the Company or another Wholly
Owned Subsidiary.
The Trustee shall have no duty or responsibility to monitor
compliance with this Section 4.06.
SECTION 4.07. Waiver of Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth herein if before or
after the time for such compliance the holders of a majority in
principal amount of the Securities of all series affected thereby
then Outstanding shall either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver
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shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
SECTION 4.08. Notice of Default.
The Company shall file with the Trustee written notice of
the occurrence of any Default or Event of Default within five
business days of its becoming aware of any such Default or Event
of Default.
SECTION 4.09. Determination of Additional Amounts.
If the Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the holder of any
Security of such series or any coupon appertaining thereto
Additional Amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for in this Section to
the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first interest
payment date with respect to that series of Securities (or, if
the Securities of that series will not bear interest prior to
maturity (including any maturity occurring by reason of a call of
redemption or otherwise), the first day on which a payment of
principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or 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 the Company's principal paying agent or
paying agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such paying agent or
paying agents whether such payment of principal of (and premium,
if any, on) or any interest on the Securities of that series
shall be made to holders of Securities of that series or any
related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such holders of Securities or
coupons and the Company will pay to the Trustee or such paying
agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and
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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.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists.
The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee (1) semiannually, not later
than January 15 and July 15 in each year, when any Securities of
a series are Outstanding, a list, in such form as the Trustee may
reasonably require, of all information in the possession or
control of the Company as to the names and addresses of the
holders of such Registered Securities as of such date, and (2) at
such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list, in
such form as the Trustee may reasonably require, of all
information in the possession or control of the Company as to the
names and addresses of the holders of Registered Securities of a
particular series specified by the Trustee as of a date not more
than 15 days prior to the time such information is furnished;
provided, however, that if and so long as the Trustee shall be
the Security Registrar with respect to such series, such list
shall not be required to be furnished.
SECTION 5.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of each series of Securities contained
in the most recent list furnished to it as provided in Section
5.01 or received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security of such series for a period
of at least six months preceding the date of such application,
and such application states that the applicants desire to
communicate with other holders of Securities of a particular
series (in which case the applicants must hold Securities of such
series) or with holders of all Securities with respect to their
rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such
application, at its election, either
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(i) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section, or
(ii) inform such applicants as to the approximate
number of holders of Securities of such series or all
Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a)
of this Section and as to the approximate cost of mailing to
such securityholders the form of proxy or other communi-
cation, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each securityholder of such
series or all Securities, as the case may be, whose name and
address appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of
this Section, a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the holders of Securities of such series or all Securities, as
the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such securityholders
with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of
the Company or of the Trustee shall be deemed to be in violation
of any law or shall be held accountable by reason
of the disclosure of any such information as to the names and
addresses of the holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the
source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
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SECTION 5.03. Reports by the Company.
The Company covenants so long as Securities are Outstanding:
(a) to file with the Trustee, within 15 days
after the Company is required to file the same with the
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 the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file
with the Trustee and the 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) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information,
documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such
rules and regulations; and
(c) to transmit by mail to all the holders of
Registered Securities of each series, as the names and
addresses of such holders appear on the registry books,
within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports
required to be filed by the Company with respect to each
such series pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) On or about May 15, 1995 and on or before 60 days after
May 15 of each year thereafter, so long as any Securities are
outstanding hereunder and if there has been any change in the
following, the Trustee shall transmit to the securityholders, as
provided in subsection (c) of this Section, in accordance with
and to the extent required by Section 3.13(a) of the Act, a brief
report dated as of the preceding May 15, with respect to:
(1) any change to its eligibility under Section 7.09,
and its qualification under Section 7.08;
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(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Section 7.08(c);
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than one-half of one percent of the principal amount of
the Securities for any series Outstanding on the date of
such Report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee
in its individual capacity, on the date of such report, with
a brief description of any property held as collateral
security therefor, except as indebtedness based upon a
creditor relationship arising in any manner described in
paragraph (2), (3), (4), or (6) of subsection (b) of Section
7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any additional issue of Securities that it has not
previously reported; and
(7) any action taken by the Trustee in the performance
of its duties under this Indenture that it has not
previously reported and that in its opinion materially
affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 7.14.
(b) The Trustee shall transmit to the holders of Securities
of any series, as provided in subsection (c) of this Section, a
brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circum-
stances surrounding the making thereof) made by the Trustee (as
such) since the date of the last report transmitted pursuant to
the provisions of subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Securities of any
series on property or funds held or collected by it as Trustee,
and which it has not previously reported pursuant to this
subsection (b), except that the Trustee for each series shall not
be required (but may elect) to report such advances if such
advances remaining unpaid at
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any time aggregate ten percent or less of the principal amount of
Securities for such series Outstanding at such time, such report to
be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(1) to all holders of Registered Securities, as the
names and addresses of such holders appear in the Security
Register;
(2) to such holders of Bearer Securities as have,
within the two years preceding such transmission, filed
their names and addresses with the Trustee for that purpose;
and
(3) except in the case of reports pursuant to
subsection (b) of this Section, to all holders of Securities
whose names and addresses are at that time preserved by the
Trustee, as provided in 5.02(a).
(d) A copy of each such report shall, at the time of such
transmission to holders of Securities, be filed by the Trustee
with each stock exchange upon which the Securities are listed and
also with the Commission and the Company. The Company agrees to
promptly notify the Trustee when and as the Securities become
listed on any stock exchange.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default; Acceleration of Maturity.
In case one or more of the following Events of Default with
respect to a particular series shall have occurred and be
continuing, that is to say:
(a) default in the payment of the principal of (or
premium, if any, on) any of the Securities of such series as
and when the same shall become due and payable either at
maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of
interest upon any of the Securities of such series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
(c) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company in the Securities or in this Indenture
contained for a period of 90 days after the date on which
written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the
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Trustee, or to the Company and the Trustee by the holders of
at least 25 percent in aggregate principal amount of the
Securities affected thereby at the time Outstanding; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company
in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Company shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case under any such
law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of the Company
or for any substantial part of its property, or shall make
any general assignment for the benefit of creditors;
then, if an Event of Default described in clause (a), (b) or (c)
shall have occurred and be continuing, and in each and every such
case, unless the principal amount of all the Securities of such
series shall have already become due and payable, either the
Trustee or the holders of not less than 25 percent in aggregate
principal amount of the Securities of all series affected thereby
then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by securityholders) may declare the
principal amount of all the Securities (or, with respect to
Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) affected thereby 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 Securities of such series
contained to the contrary notwithstanding, or, if an Event of
Default described in clause (d) or (e) shall have occurred and be
continuing, and in each and every such case, unless the principal
of all the Securities of such series shall have already become
due and payable, either the Trustee or the holders of not less
than 25 percent in aggregate principal amount of all the
Securities then Outstanding hereunder (voting as one class), by
notice in writing to the Company (and to the Trustee if given by
securityholders), may declare the principal of all the Securities
(or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such
Securities) 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
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Indenture or in the Securities contained to the contrary
notwithstanding.
SECTION 6.02. Rescission and Annulment.
The provisions in Section 6.01 are subject to the condition
that if, at any time after the principal of the Securities of any
one or more of all series, as the case may be, shall have been so
declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series or of all the
Securities, as the case may be, and the principal of (and
premium, if any, on) all Securities of such series or of all the
Securities, as the case may be (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified
in the terms of such Securities), which shall have become due
otherwise than by acceleration (with interest upon such principal
and premium, if any) and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of
interest specified in the Securities of such series or all
Securities, as the case may be (or, with respect to Original
Issue Discount Securities, at the rate specified in the terms of
such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration of such series, as the case
may be), to the date of such payment or deposit, and such amount
as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith, and
any and all defaults under the Indenture, other than the non-
payment of the principal of Securities, which shall have become
due by acceleration, shall have been remedied; then and in every
such case the holders of a majority in aggregate principal amount
of the Securities of such series (or of all the Securities, as
the case may be) then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect
to that series or with respect to all Securities, as the case may
be in such case, treated as a single class and rescind and annul
such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission and
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the
Company, the Trustee and the securityholders, as the case may be,
shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the
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securityholders, as the case may be, shall continue as though no
such proceedings had been taken.
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment
of interest on any Security when such interest becomes due
and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal or
premium, if any, of any Security at the maturity thereof,
including any maturity occurring by reason of a call for
redemption or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the holders of such Securities and any coupons
appertaining thereto, the whole amount that shall have become due
and payable on such Securities and coupons for principal or
premium, if any, and interest, with interest upon the overdue
principal and, to the extent that payment of such interest shall
be legally enforceable, upon overdue installments of interest, at
the rate borne by such Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceedings to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In the case of the pendency of a receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
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composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal and premium, if any, and any interest owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
holders of Securities and coupons allowed in such judicial
proceeding; and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any receiver, assignee, trustee, liquidator or sequestrator
(or other similar official) in any such judicial proceeding is
hereby authorized by each holder of Securities and coupons to
make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to
the holders of Securities and coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
7.06. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts
out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends,
moneys, securities and other property which the holders of the
Securities and coupons may be entitled to receive in such
proceedings, whether in liquidation or under any plan or
reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of the holder of a Security or a coupon any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
holder of a Security or a coupon in any such proceeding.
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SECTION 6.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or any
interest, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and any interest on the Securities and coupons, in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Securities and coupons, for principal and any interest,
respectively; and
THIRD: To the Company or its successors or assigns, or
to whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits.
No holder of any Security of any series or any related
coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the holders of not less than 25% in principal amount
of the Outstanding Securities shall have made written request
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to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee
hereunder;
(3) such holder or holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceedings; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the holders of a majority in principal amount of
the Outstanding Securities;
it being understood and intended that no one or more such holders
of Securities shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
holders of Securities or to obtain or to seek to obtain priority
or preference over any other of such holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such holders of
Securities.
SECTION 6.08. Unconditional Right of Securityholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, the
holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Sections 2.05 and 3.02)
any interest on such Security or payment of such coupon on the
respective stated maturities expressed in such Security or coupon
(or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the
Trustee or to such holder, then and in every such case the
Company, the Trustee and the holders of Securities and coupons
shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee
and the holders shall continue as though no such proceeding has
been instituted.
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SECTION 6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right or remedy
herein conferred upon or reserved to the Trustee or to the
holders of Securities or coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder of any
Security or coupon to exercise any right or remedy accruing upon
any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the holders of Securities or coupons may be exercised from
time to time, and as often as may be deemed expedient, by the
Trustee or by the holders of Securities or coupons, as the case
may be.
SECTION 6.12. Control by Securityholders.
The holders of a majority in principal amount of Outstanding
Securities of each series shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
statute, rule of law or with this Indenture;
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction; and
(3) the Trustee need not take any action which it in
good faith determines might involve it in personal liability
or be unjustly prejudicial to the securityholders not
consenting.
Upon receipt by the Trustee of any such direction with
respect to Securities of a series all or part of which is
represented by a temporary global Security or a permanent global
Security, the Trustee shall establish a record date for
determining holders of Outstanding Securities of such series
entitled to join in such direction, which record date shall be at
the close of business on the day the Trustee receives such
direction. The holders on such record date, or their duly
designated proxies, and only such persons, shall be entitled to
join in such direction, whether or
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not such holders remain holders after such record date, provided
that, unless such majority in principal amount shall have been obtained
prior to the day which is 90 days after such record date, such direction
shall automatically and without further action by any holder be
cancelled and of no further effect. Nothing in this paragraph
shall prevent a holder, or a proxy of a holder, from giving,
after expiration of such 90-day period, a new direction identical
to a direction which has been cancelled pursuant to the proviso
to the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this Section 6.12.
SECTION 6.13. Waiver of Past Defaults.
The holders of a majority in principal amount of the
Outstanding Securities of each series may, on behalf of the
holders of all the Securities and any coupons appertaining
thereto, waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of, premium, if
any, or any interest on any Security; or
(2) in respect of a covenant or provision hereof that
pursuant to Article Ten cannot be modified or amended
without the consent of the holder of each Outstanding
Security affected.
Upon any such waiver, such default shall cease to exist, and any
Default or Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture, but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each holder of any
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, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
holder, or group of holders, holding in the aggregate more than
ten percent in principal amount of the Outstanding Securities, or
to any suit instituted by any holder of any Securities or coupons
for the enforcement of the payment of the principal of, premium, if any,
or any interest on any Security or the payment of any coupon on or
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after the respective stated maturities expressed in
such Security or coupon (or, in the case of redemption, on or
after the redemption date, except, in the case of a partial
redemption, with respect to the portion not so redeemed).
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension laws wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefits
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default of a particular series and after the curing of all Events
of Default of such series which may have occurred, undertakes to
perform such duties and only such duties with respect to such
series as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this
Indenture against the Trustee and 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.
(b) In case an Event of Default with respect to a
particular series has occurred (which has not been cured), the
Trustee shall exercise with respect to such series such of the
rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provisions of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that:
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(1) prior to the occurrence of an Event of Default
with respect to a particular series and after the curing of
all Events of Default with respect to such series which may
have occurred, the duties and obligations of the Trustee
with respect to such series shall be determined solely by
the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of
Securities pursuant to Section 6.12 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.
(d) No provision of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or
otherwise to 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 it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, etc.
Subject to the provisions of 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, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order (unless other evidence in respect
thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or any Assistant Secretary of the
Company; and whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the
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absence of bad faith on its part, rely upon an Officers' Certificate;
(c) the Trustee may consult with counsel and the written
advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(d) 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 any
Securities or any related coupons 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 might be incurred therein or
thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon
or other paper or documents, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(g) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities, other
than 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 Securities or coupons,
provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture.
The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
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SECTION 7.04. Ownership of Securities.
The Trustee, any authenticating agent, any paying agent, any
Security Registrar or any other agent of the Company or of the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons with the same rights
it would have if it were not Trustee, authenticating agent,
paying agent, Security Registrar or such other agent of the
Company or of the Trustee.
SECTION 7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04 hereof, all
moneys received by the Trustee or any paying agent 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. Neither
the Trustee nor any paying agent shall be under any liability for
interest on any moneys received by it hereunder except such as it
may agree in writing with the Company to pay thereon.
SECTION 7.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such
compensation for all services rendered by it hereunder as the
Company and the Trustee shall from time to time agree in writing
(which to the extent permitted by law 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, the
Company will pay or reimburse the Trustee forthwith 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 counsel
and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence
or bad faith. If any property other than cash shall at any time
be subject to the lien of this Indenture, 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
and to be reimbursed for, advances for the purpose of preserving
such property or of discharging tax liens or other prior liens or
encumbrances thereon. The Company also covenants to indemnify
the Trustee for, and to hold it harmless against, any and all
loss, damage, claims, liability or expense, including taxes
(other than taxes based upon, measured or determined by, the
income of the Trustee) incurred without negligence or bad faith
on the part of the Trustee, arising out of or in connection with
the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of
liability. The obligations of the Company under this Section
shall constitute additional
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indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in
trust for the benefit of the holders of particular Securities.
To secure the Company's obligations under this Section, the
Trustee shall have a senior claim to which the Securities are
hereby made subordinate on all money or property held or
collected by the Trustee, except that held in trust to pay
principal of (and premium, if any) and interest, if any, on
particular Securities.
When the Trustee incurs expenses or renders services after
an Event of Default, the expenses and the compensation for the
services are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 7.07. Officers' Certificate as Evidence.
Subject to the provisions of 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 any action to be taken
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. Disqualifications; Conflicting Interest of
Trustee.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90 days
after ascertaining that it has such conflicting interest, and if
an Event of Default as defined in subsection (c) of this Section
to which such conflicting interest relates has not been cured or
duly waived or otherwise eliminated before the end of such 90-day
period, either eliminate such conflicting interest or resign in
the manner and with the effect specified in Section 7.10.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, the Trustee
shall, within ten days after the expiration of such 90-day
period, transmit notice of such failure in the manner and to the
extent set forth in Section 5.04(c), to all securityholders of
the series affected by the conflicting interest.
(c) For the purposes of this Section the Trustee shall be
deemed to have a conflicting interest with respect to a
particular series if such Securities are in default and
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(1) the Trustee is trustee under this Indenture with
respect to the outstanding Securities of any other series or
is trustee under another indenture under which any other
securities, or certificates of interest or participation in
any other securities, of the Company are outstanding, unless
such other indenture is a collateral trust indenture under
which the only collateral consists of Securities issued
under this Indenture; provided that there shall be excluded
from the operation of this paragraph (A) this Indenture with
respect to any other series, and (B) any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities of the Company
are outstanding if
(i) this Indenture is, and, if applicable, such
other indenture or indentures, are wholly unsecured and
rank equally, and such other indenture or indentures
are hereafter qualified under the Trust Indenture Act
of 1939, as in effect at the time of such
qualification, unless the Commission shall have found
and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the
Trust Indenture Act of 1939 that differences exist
between the provisions of this Indenture with respect
to such particular series and (A) one or more other
series in this Indenture or (B) the provisions of such
other indenture or indentures which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as
such under this Indenture with respect to such
particular series and such other series or such other
indenture or indentures, or
(ii) the Company shall have sustained the burden
of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under
this Indenture with respect to such particular series
and such other series or under this Indenture and such
other indenture or indentures is not so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as
such under this Indenture with respect to such
particular series and such other series or under this
Indenture and such other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for an obligor upon the
Securities of any series issued under this Indenture;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Company;
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(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee, or representative of the Company, or of an
underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director or an
executive officer or both of the Trustee and a director or
an executive officer or both of the Company, but may not be
at the same time an executive officer of both the Trustee
and the Company; (B) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive
officer or both of the Trustee and a director of the
Company; and (C) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (c), to act as trustee,
whether under an indenture or otherwise;
(5) ten percent or more of the voting securities of
the Trustee is beneficially owned either by the Company or
by any director, partner, or executive officer thereof, or
20 percent or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons, or
ten percent or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the
Company or by any director, partner, or executive officer
thereof, or is beneficially owned, collectively, by any two
or more such persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default, (A) five percent or more of the voting securities,
or ten percent or more of any other class of security, of
the Company, not including the Securities issued under this
Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (B) ten percent
or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default, five percent or more of the voting securities of
any person who, to the knowledge of the Trustee, owns ten
percent or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default, ten percent or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50 percent
or more of the voting securities of the Company; or
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(9) the Trustee owns on the date of default as defined
in subsection (c) of this Section or any anniversary of such
default while such default remains outstanding, in the
capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25 percent or more
of the voting securities, or of any class of security, of
any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the
Trustee acquired ownership through becoming executor,
administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence
shall not apply, for a period of not more than two years
from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25 percent
of such voting securities or 25 percent of any such class of
security. Promptly after the dates of any such default and
annually in each succeeding year that the Securities of any
series hereunder remain in default, the Trustee shall make a
check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company
fails to make payment in full of principal of or interest on
any of the Securities when and as the same become due and
payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of
this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of
this subsection (c); or
(10) except under the circumstances described in
Section 7.13, the Trustee shall be or shall become a
creditor of the Company.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
paragraph (3) or (7) or this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities"
shall include only such securities as are generally known as
corporate securities, but shall not include any note or other
evidence of indebtedness issued to evidence an obligation to repay
moneys lent to a person by one or more banks, trust companies or
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banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness;
(B) an obligation shall be deemed to be in default when a default
in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it
holds as collateral security (as trustee or otherwise) for any
obligation which is not in default as defined in clause (B)
above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or
(iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year
prior to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
has sold for the Company in connection with, the distribu-
tion of any security of the Company outstanding at such
time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated
or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall
not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of
the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in
this paragraph, the term "trust" shall include only a trust
where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in
the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder of such security
currently are entitled to vote in the direction or
management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the
Securities.
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(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated but shall not include the chairman of the
board of directors.
(7) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(i) A specified percentage of the voting
securities of the Trustee, the Company or any other
person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such
amount of the outstanding voting securities of such
person as entitles the holder or holders thereof to
cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person.
(ii) A specified percentage of a class of
securities of a person means such percentage of the
aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if
relating to capital shares, and the number of units if
relating to any other kind of security.
(iv) The term "outstanding" means issued and not
held by or for the account of the issuer. The
following securities shall not be deemed outstanding
within the meaning of this definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer
of the same class;
(B) securities of an issuer held in a
sinking fund relating to another class of
securities of the issuer, if the obligation
evidenced by such other class of securities is not
in default as to principal or interest or
otherwise;
(C) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise;
and
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(D) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of
an issuer shall be deemed outstanding if any
person other than the issuer is entitled to
exercise the voting rights thereof.
(v) A security shall be deemed to be of the same
class as another security if both securities confer
upon the holder or holders thereof substantially the
same rights and privileges, provided, however, that in
the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences
in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to
constitute such series different classes and provided,
further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient
to constitute them securities of different classes,
whether or not they are issued under a single
indenture.
(e) Except in the case of a default in the payment of the
principal of or interest on any Securities of any series or any
coupon issued hereunder, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to
resign as provided by subsection (c) of this Section if the
Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that (i) such default may be cured or waived during a
reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will
not be inconsistent with the interests of the holders of the
Securities of any series issued hereunder. The filing of such an
application shall automatically stay the performance of the duty
to resign until such Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's
acceptance of such appointment as provided in Section 7.11.
(f) If Section 310(b) of the Trust Indenture Act of 1939 is
amended at any time after the date of this Indenture to change
the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series
or to change any of the definitions in connection therewith, this
Section 7.08 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting
as Trustee hereunder with respect to any Outstanding Securities
to be deemed to have a conflicting interest, in which case such
changes shall be incorporated herein only to the extent that such
changes (i) would not cause the Trustee to be deemed to have a
conflicting interest, or (ii) are required by law.
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SECTION 7.09. Eligibility of Trustee.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to
exercise corporate trust powers, (b) is subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority, (c) shall have at all times a combined
capital and surplus of not less than $5,000,000 and (d) shall not
be the Company or any person directly or indirectly controlling,
controlled by, or under common control with the Company. If such
corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at
any time shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or
all series by giving written notice of resignation to the
Company. Upon receiving such notice of resignation the Company
shall promptly appoint a successor trustee with respect to the
applicable series by written instrument, in duplicate, executed
by order of the Board of Directors of the Company, one copy of
which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent juris-
diction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 7.08 with respect to
any series of Securities after written request therefor by
the Company or by any securityholder who has been a bona
fide holder of a Security or Securities of such series for
at least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 with respect
to any series
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of Securities and shall fail to resign after
written request therefor by the Company or by any such
securityholder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee with respect to such series by written
instrument, in duplicate, executed by order of the Board of
Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.14, any
securityholder of such series who has been a bona fide holder of
a Security or Securities of the applicable series for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Securities of all series (voting as one class) at the time
Outstanding may at any time remove the Trustee with respect to
Securities of all series and appoint a successor trustee with
respect to the Securities of all series.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the
provisions of this Section shall become effective upon the
appointment of a successor trustee and the acceptance of
appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the
predecessor trustee shall, upon payment of any amounts then due
it pursuant to the
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provisions of Section 7.06, execute and deliver an instrument transferring
to such successor trustee all the rights and powers of the predecessor
trustee. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor trustee all such
rights and powers. Any trustee, including the initial Trustee, ceasing to
act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all)
series, the Company, the predecessor Trustee and each successor
trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities
of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture
shall constitute such trustees co-trustees of the same trust and
that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such trustee.
No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor
trustee shall be qualified and eligible under the provisions of
this Article Seven.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall mail notice of the
succession of such trustee hereunder to all holders of Securities
of any applicable series as the names and addresses of such
holders shall appear on the registry books. If the Company fails
to mail such notice in the prescribed manner within ten days
after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be so mailed at the
expense of the Company.
SECTION 7.12. Successor by Merger, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such
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corporation shall be qualified and eligible under the provisions of this
Article Seven, without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 7.13. Limitations on Rights of Trustee as Creditor.
(a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company or
of any other obligor on the Securities within three months prior
to a default, as defined in subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders
of the Securities and the holders of other indenture securities
(as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(3) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
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reorganization pursuant to Title 11 of the United States
Code or applicable State law;
(4) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three months'
period;
(5) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default as defined in subsection (c) of
this Section would occur within three months; or
(6) to receive payment on any claims referred to in
paragraph (4) or (5), against the release of any property
held as security for such claim as provided in such
paragraph (4) or (5), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (4), (5) and (6), property
substituted after the beginning of such three months' period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such
preexisting claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof
shall be apportioned between the Trustee, the securityholders and
the holders of other indenture securities in such manner that the
Trustee, the securityholders and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting
to the respective claims of the Trustee, the securityholders and
the holders of other indenture securities, dividends on claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State law, but after crediting thereon
receipts on
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account of the indebtedness represented by their
respective claims from all sources other than from such dividends
and from the funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable State law, whether such distribution is made in cash,
securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership, or
proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, the securityholders and the
holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the securityholders
and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary
to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months' period it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
such Trustee had continued as trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising
from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
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(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
securityholders at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances,
or obligations which fall within the classification of self-
liquidating paper as defined in subsection (c) of this
Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Securities or the other indenture securities when and as
such principal or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined
in the Trust Indenture Act of 1939) outstanding under any
other indenture (A) under which the Trustee is also trustee,
(B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (C) under
which a default exists at the time of the apportionment of
the funds and property held in the special account referred
to in such subsection (a).
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand.
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(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purposes of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, posses-
sion of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relation-
ship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the
Securities.
SECTION 7.14. Notice of Default.
Within 90 days after the occurrence of any default on a
series of Securities hereunder, the Trustee shall transmit to all
securityholders of that series, in the manner and to the extent
provided in Section 15.04, notice of such default hereunder known
to the Trustee, unless such default shall have been cured or
waived; provided, however, that except in the case of a default
in the payment of the principal of or interest on any Security
or on the payment of any sinking or purchase fund installment,
the Trustee shall be protected in withholding such notice if and
so long as the trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the security-
holders; and provided, further, that in the case of any default
of the character specified in clause (c) of Section 6.01 no such
notice to securityholders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 7.15. Appointment of Authenticating Agent.
The Trustee may appoint an authenticating agent or agents
(which may be an affiliate or affiliates of the Company) with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 2.09, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
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deemed to include authentication and delivery on behalf
of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to
exercise corporate trust powers or to otherwise act as
authenticating agent, (b) is subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority, and (c) shall have at all times a combined
capital and surplus of not less than $5,000,000. If such
authenticating agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such authenticating
agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an authenticating agent shall cease to be eligible
in accordance with the provisions of this Section, such
authenticating agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an authenticating agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such authenticating agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of such authenticating agent, shall
continue to be an authenticating agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
An authenticating agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating
agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor authenticating agent which shall be
acceptable to the Company and shall promptly give notice of such
appointment to all holders of Securities in the manner and to the
extent provided in Section 15.04. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this
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Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 7.06.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office
capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have
Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing, shall
appoint in accordance with this Section an authenticating agent
(which, if so requested by the Company, shall be such affiliate
of the Company) having an office in a Place of Payment designated
by the Company with respect to such series of Securities,
provided that the terms and conditions of such appointment are
acceptable to the Trustee.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders
of a specified percentage in aggregate principal amount of the
Securities of any or all series may take any action (including
the making of any demand or request, the giving of any
authorization, 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 securityholders in
person or by agent or proxy
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appointed in writing, or (b) if
Securities of a series are issuable as Bearer Securities, by the
record of the holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of securityholders of such series duly called and held in
accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record
of such a meeting of securityholders.
In determining whether the holders of a specified percentage
in aggregate principal amount of the Securities of any or all
series have taken any action (including the making of any demand
or request, the giving of any authorization, direction, notice,
consent or waiver or the taking of any other action), (i) the
principal amount of any Original Issue Discount Security that may
be counted in making such determination and that shall be deemed
to be outstanding for such purposes shall be equal to the amount
of the principal thereof that could be declared to be due and
payable upon an Event of Default pursuant to the terms of such
Original Issue Discount Security at the time the taking of such
of such action is evidenced to the Trustee, and (ii) the
principal amount of a Security denominated in a foreign currency
or currency unit shall be the U.S. dollar equivalent, determined
as of the date of original issuance of such Security in
accordance with Section 2.03(b) hereof, of the principal amount
of such Security.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, 7.02 and 9.05,
proof of the execution of any instrument by a securityholder or
its agent or proxy, or of the holding by any person of a
Security, shall be sufficient and conclusive in favor of the
Trustee and the Company 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.
The principal amount and serial numbers of Registered
Securities held by any person, and the date of holding the same,
shall be proved by the Security Register. The principal amount
and serial numbers of Bearer Securities held by any person, and
the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
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Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may also be
provided in any other manner which the Trustee deems sufficient.
The record of any securityholders' meeting shall be proved
in the manner provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or of the Trustee may deem the person in whose
name such Registered Security shall be registered upon the
Security Register to be, and may treat him as, the absolute owner
of such Registered Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other
writing thereon), for the purpose of receiving payment of or on
account of the principal of (and premium, if any) and, subject to
the provisions of Sections 2.05 and 2.07, any interest on such
Security and for all other purposes; and neither the Company nor
the Trustee nor any agent of the Company or of the Trustee shall
be affected by any notice to the contrary. All such payments so
made to any 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 Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or of the Trustee may treat the bearer of
any Bearer Security and the bearer of any coupon as the owner of
such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any temporary
or permanent global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or of the
Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Common Depositary or a U.S.
Depositary, as the case may be, or impair, as between a Common
Depositary or a U.S. Depositary and holders of beneficial
interests in any temporary or permanent global Security, as the
case may be, the operation of customary practices governing the
exercise of the rights of the Common Depositary or the U.S.
Depositary as holder of such temporary or permanent global
Security.
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SECTION 8.04. Company-Owned Securities Disregarded.
In determining whether the holders of the required aggregate
principal amount of Securities have provided any request, demand,
authorization, notice, direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other
obligor on the Securities, or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on
the Securities, shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be
protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the
Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right
to vote such Securities and that the pledgee is not a person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such
other obligor. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 8.05. Revocation of Consents; Future Securityholders
Bound.
At any time prior to the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action, any
holder of a Security, the identifying number of which is shown by
the evidence to be included in the Securities the holders of
which have consented to such action, may, by filing written
notice with the Trustee at its office and upon proof of holding
as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and
binding upon such holder and upon all future holders and owners
of such Security and of any Security issued upon registration of
transfer of or in exchange or substitution therefor in respect of
anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, irrespective of whether or not
any notation in regard thereto is made upon such Security. Any
action taken by the holders of the percentage in aggregate
principal amount of the Securities 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.
SECTION 8.06. Record Date.
The Company may, but shall not be obligated to, set a record
date for purposes of determining the identity of holders of
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Securities of any series entitled to vote or consent to any
action by vote or consent or to otherwise take any action under
this Indenture authorized or permitted by Section 6.12 or Section
6.13 or otherwise under this Indenture. Such record date shall
be the later of the date 20 days prior to the first solicitation
of such consent or vote or other action or the date of the most
recent list of holders of such Securities delivered to the
principal corporate trust office of the Trustee pursuant to
Section 5.01 prior to such solicitation. If such a record date
is fixed, those persons who were holders of such Securities at
the close of business on such record date shall be entitled to
vote or consent or take such other action, or to revoke any such
action, whether or not such persons continue to be holders after
such record date, and for that purpose the Outstanding Securities
shall be computed as of such record date.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meeting.
A meeting of holders of any or all series of Securities may
be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to
waive any default hereunder and its consequences, or to take
any other action authorized to be taken by securityholders
pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and appoint a successor
trustee pursuant to the provisions of Article Seven;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 10.02; or
(d) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate
principal amount of the Securities of any or all series, as
the case may be, under any other provision of this Indenture
or under applicable law.
SECTION 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of security-
holders of any or all series to take any action specified in
Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, England,
as the Trustee shall determine. Notice of every meeting of the
securityholders of any or all series, setting forth the time and
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place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in the
manner provided in Section 15.04 not less than 20 nor more than
180 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a Board
Resolution, or the holders of at least ten percent in aggregate
principal amount of the Securities of any or all series, as the
case may be, then Outstanding, shall have requested the Trustee
to call a meeting of securityholders of any or all series to take
any action authorized in Section 9.01, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have provided notice of such
meeting in the manner provided in Section 15.04 within 30 days
after receipt of such request, then the Company or the holders of
such Securities in the amount above specified may determine the
time and the place in said Borough of Manhattan, The City of New
York, or in London, for such meeting and may call such meeting by
giving notice thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of securityholders a
person shall be a holder of one or more Securities of such series
Outstanding with respect to which a meeting is being held or a
person appointed by an instrument in writing as proxy by such a
holder or holders. The only persons who shall be entitled to be
present or to speak at any meeting of the securityholders of any
series shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of securityholders of a series, in
regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved
in the manner specified in Article Eight and the appointment of
any proxy shall be proved in the manner specified in Article
Eight or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Article Eight to certify to the holding of
Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on
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their face, may be presumed valid and genuine without the proof
specified in Article Eight or other proof.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by securityholders as provided in
Section 9.03, in which case the Company or the securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any
meeting each securityholder or proxy shall be entitled to one
vote for each $1,000 (or the U.S. Dollar equivalent thereof in
connection with Securities issued in a foreign currency or
currency unit) Outstanding principal amount of Securities of such
series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote except as a securityholder or
proxy. Any meeting of securityholders duly called pursuant to
the provisions of Section 9.02 or 9.03 may be adjourned from time
to time, and the meeting may be reconvened without further
notice.
SECTION 9.06. Voting.
The vote upon any resolution submitted to any meeting of
securityholders shall be by written ballot on which shall be
subscribed the signatures of the securityholders or proxies and
on which shall be inscribed the identifying number or numbers or
to which shall be attached a list of identifying numbers of the
Securities held or represented by them. The chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each
meeting of securityholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall be signed and verified by the
chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.
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Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders.
Without the consent of any holders of Securities or coupons,
the Company, when authorized by or pursuant to Board Resolution,
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 of 1939 as
in force at the date of the execution thereof) for one or more of
the following purposes:
(a) to evidence the succession of another corporation
to the Company, or successive successions, pursuant to
Article Eleven hereof, and the assumption by the successor
corporation of the covenants, agreements and obligations of
the Company herein and in the Securities;
(b) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions as
its Board of Directors shall consider to be for the
protection of the holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth, with such period of
grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the
holders of Securities of any series or any related coupons
in any material respect;
(d) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the Trust
Indenture Act of 1939, or under any similar Federal statute
hereafter enacted, and to add to this Indenture such other
provisions as
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may be expressly permitted by the Trust
Indenture Act of 1939, excluding however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act
of 1939 or any corresponding provision in any similar
Federal statute hereafter enacted;
(e) to modify, eliminate or add to any of the
provisions of this Indenture, provided that any such change
or elimination (i) shall become effective only when there is
no Security of any series Outstanding and created prior to
the execution of such supplemental indenture that is
entitled to the benefit of such provision or (ii) shall not
apply to any Security Outstanding;
(f) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provisions contained herein or in any supplemental
indenture; 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 such other provisions shall not
adversely or any related coupons affect in any material
respect the interests of the holders of the Securities or
any related coupons, including provisions necessary or
desirable to provide for or facilitate the administration of
the trusts hereunder; and
(g) to evidence and provide for the acceptance and
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add or change
any provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to Section
7.11.
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 adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
No supplemental indenture shall be effective as against the
Trustee unless and until the Trustee has duly executed and
delivered the same.
SECTION 10.02. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than 66 2/3% in aggregate principal
amount of the Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class),
the Company, when authorized by a Board Resolution, and the
Trustee may from
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time to time and at any time enter into indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the 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 Securities of such series and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall (1) extend the fixed maturity of any
Securities, or reduce the principal amount thereof or premium, if any,
or reduce the rate or extend the time of payment of interest thereon,
without the consent of the holder of each Security so affected, or
(2) reduce the aforesaid percentage of Securities, the consent of
the holders of which is required for any such supplemental
indenture, without the consent of the holders of all Securities
then Outstanding.
Upon the request of the Company, accompanied by a copy of a
Board Resolution certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of securityholders 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.
It shall not be necessary for the consent of the
securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Article Ten, the Company shall provide notice, in the manner and
to the extent provided in Section 15.04, setting forth in general
terms the substance of such supplemental indenture, to all
holders of Securities of each series so affected. Any failure of
the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article Ten shall comply with the Trust
Indenture Act of 1939, as then in effect. Upon the execution of
any supplemental indenture pursuant to the provisions of this
Article Ten and subject to the provisions in any supplemental
indenture relating to the prospective application of such
instrument, this Indenture shall be and be deemed to be modified
and amended in accordance
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therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company
and the holders of Securities theretofore or thereafter authenticated
and delivered hereunder and of any coupons appertaining thereto 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.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, shall be entitled to receive and shall be fully protected
in relying upon an Opinion of Counsel as conclusive evidence that
any such supplemental indenture complies with the provisions of
this Article Ten.
SECTION 10.04. Notation on Securities.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. New Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered, without
charge to the securityholders, in exchange for the Securities of
such series then Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain Terms.
The Company covenants that it will not merge into or
consolidate with any other corporation or sell or convey all or
substantially all of its assets to any person, firm or
corporation, unless (1) either the Company shall be the
continuing corporation, or the successor corporation (if other
than the Company) shall be a corporation organized and existing
under the laws of the United States of America or a state thereof
or the District of Columbia and such corporation shall expressly
assume the due and punctual payment of the principal of (and
premium, if any, on) and any interest on all the Securities,
according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation, and (2) the Company or such
successor corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale or
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conveyance, be in default in the performance of any such covenant or
condition.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or
conveyance and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for, and may exercise every right and power of, the
Company, with the same effect as if it had been named herein as
the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order
of such successor corporation, instead of the Company, and
subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution thereof.
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 Securities thereafter to be issued
as may be appropriate.
SECTION 11.03. Opinion of Counsel and Officers' Certificate to be
Given Trustee.
The Trustee shall receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article Eleven
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture.
If at any time
(1) the Company shall have delivered to the Trustee
for cancellation all Securities of any series theretofore
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authenticated and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 2.07,
(ii) Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 2.09, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 3.03, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 4.03), or
(2) all such Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) shall have become due and payable, or (ii) are by their
terms to become due and payable within one year or (iii) are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption, and the Company in the case of (i),
(ii) or (iii) above shall deposit or cause to be deposited
with the Trustee as trust funds the entire amount (other
than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 12.04) sufficient to pay
at maturity or upon redemption all Securities of such series
and coupons not therefore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
any interest due or to become due to such date of maturity
or date fixed for redemption, 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 with respect
to such series, then this Indenture shall cease to be of further
effect with respect to the Securities of such series, and the
Trustee, on demand of and at the cost and expense of the Company
and subject to Section 15.05, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with
respect to the Securities of such series. The Company agrees to
reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection
with this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of any series or of all series,
the obligations of the Company to the Trustee under Section 7.06
shall survive.
The Company will deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel which together shall state
that all conditions precedent herein provided for relating to the
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satisfaction and discharge of this Indenture have been complied
with.
SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of the last paragraph of Section
4.03, all moneys deposited with the Trustee pursuant to
Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including
the Company acting as its own paying agent), to the persons
entitled thereto, of all sums due and to become due thereon for
principal and interest (and premium, if any) for which payment of
such money has been deposited with the Trustee.
SECTION 12.03. Paying Agent to Repay Moneys Held.
In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series and the
payment of all amounts due to the Trustee under Section 7.06, all
moneys with respect to such Securities then held by any paying
agent under the provisions of this Indenture shall, upon demand
of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of (and premium, if
any) or interest on any Security and not applied but remaining
unclaimed for two years after the date upon which such principal
(and premium, if any, on) or interest shall have become due and
payable, shall be repaid to the Company by the Trustee or such
paying agent on demand, and the holder of such Security shall
thereafter, as an unsecured general creditor, look only to the
Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate
Obligations.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security or
coupon, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company
or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law,
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statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the
acceptance of the Securities or coupons by the holders thereof
and as part of the consideration for the issue of the Securities.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article.
Unless, as specified pursuant to Section 2.03(b), provision
is made that either or both of (a) defeasance of the Securities
of a series under Section 14.02 and (b) covenant defeasance of
the Securities of a series under Section 14.03 shall not apply to
the Securities of a series, then the provisions of such Section
14.02 and Section 14.03, together with Sections 14.04 and 14.05,
shall be applicable to the Outstanding Securities of all series
upon compliance with the conditions set forth below in this
Article Fourteen.
SECTION 14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may cause itself to be
discharged from its obligations with respect to the Outstanding
Securities of any series on and after the date the conditions
precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below
(hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of
holders of Outstanding Securities of such series to receive,
solely from the trust fund described in Section 14.04 and as more
fully set forth in such Section, payments of the principal of and
any premium and interest on such Securities when such payments
are due, (B) the Company's obligations with respect to such
Securities under Sections 2.07, 2.08, 2.09, 4.02 and 4.03 and
such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in
respect of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, defeasance with
respect to Securities of a series by the Company is permitted
under this Section 14.02 notwithstanding the prior exercise of
its rights under Section 14.03 with respect to the Securities of
such series. Following a defeasance, payment of the Securities
of such series may not be accelerated because of an Event of
Default.
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SECTION 14.03. Covenant Defeasance.
The Company may cause itself to be released from its
obligations under any Sections applicable to Securities of a
series that are determined pursuant to Section 2.03(b) to be
subject to this provision with respect to the Outstanding
Securities of such series on and after the date the conditions
precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below
(hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as
specifically noted below, subsequent to application of either
Section 14.02 or Section 14.03 to the Outstanding Securities of
such series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the holders of such Securities, (A) money
in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (i) the
principal of and any premium and interest on the Outstanding
Securities of such series to maturity or redemption, as the
case may be, and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities
of such series on the due dates thereof. Before such a
deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future
date or dates in accordance with Article Three which shall
be given effect in applying the foregoing. For this
purpose, "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
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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, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S.
Government obligation or a specific payment of principal of
or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such
depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt;
(2) No Default, or event which after notice or lapse
of time, or both, would become a Default with respect to the
Securities of such series, shall have happened and be
continuing (A) on the date of such deposit or (B) insofar as
subsections 6.01(a) and (b) are concerned, at any time
during the period ending on the 123rd day after the date of
such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood
that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the
expiration of such period);
(3) Such defeasance or covenant defeasance shall not
(A) cause the Trustee for the Securities of such series to
have a conflicting interest as defined in Section 7.08 or
for purposes of the Trust Indenture Act of 1939 with respect
to any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is
qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended;
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(5) Such defeasance or covenant defeasance shall not
cause any Securities of such series then listed on any
registered national securities exchange under the Exchange
Act to be delisted;
(6) In the case of a defeasance under Section 14.02,
the Company shall have delivered to the Trustee an Opinion of
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Counsel stating that (x) the Company has received from,
or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the Outstanding
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;
(7) In the case of covenant defeasance under Section
14.03, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the holders of the
Outstanding 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;
(8) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in
connection therewith pursuant to Section 2.03(b); and
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent and subsequent
provided for in this Indenture relating to either the
defeasance under Section 14.02 or the covenant defeasance
under Section 14.03, as the case may be, have been complied
with.
SECTION 14.05. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section
14.04 in respect of the Outstanding Securities of such series
shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the
payment, either directly or through any paying agent (but not
including the Company acting as its own paying agent) as the
Trustee may determine, to the holders of such Securities of all
sums due and to become due thereon in respect of principal and
any premium and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money
or U.S. Government Obligations deposited pursuant to Section
14.04 or the principal and interest received in respect thereof.
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Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by
it as provided in Section 14.04 which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or
covenant defeasance, provided that the Trustee shall not be
required to liquidate any U.S. Government Obligations in order to
comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding, if and to
the extent the deposited money or U.S. Government Obligations (or
the proceeds thereof) either (i) cannot be applied by the Trustee
in accordance with this Section because of a court order or by
operation of Article Sixteen or (ii) are for any reason
insufficient in amount, then the Company's obligations to pay
principal of and any premium and interest on the Securities of
such series shall be reinstated to the extent necessary to cover
the deficiency on any due date for payment. In any such case,
the Company's interest in the deposited money and U.S. Government
Obligations (and proceeds thereof) shall be reinstated to the
extent the Company's payment obligations are reinstated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties and
Securityholders.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities, any
legal or equitable right, remedy or claim under this Indenture or
under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the
parties hereto and their successors and assigns and the holders
of the Securities.
SECTION 15.02. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or in behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.03. Addresses for Notices, etc., to Company and
Trustee.
Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities to or on the Company may
be given or
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served by postage prepaid first class mail addressed
(until another address is filed by the Company with the Trustee),
as follows: NationsBank Corporation, NationsBank Corporate
Center, Charlotte, North Carolina 28255-0065, Attention:
Treasurer. Any notice, direction, request or demand by any
securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or
made in writing at the principal corporate trust office of the
Trustee as set forth in Section 4.02.
SECTION 15.04. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice of holders of Securities of any
event,
(1) such notice shall be sufficiently given to holders
of Registered Securities if in writing and mailed, first-
class postage prepaid, to each holder of a Registered
Security affected by such event, at the address of such
holder as it appears in the Security Register, not earlier
than the earliest date, and not later than the latest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to holders
of Bearer Securities if published in an Authorized Newspaper
in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice to holders of Registered Securities by mail, then
such notification as shall be made with the approval of the
Trustee shall constitute sufficient notice to such holders for
every purpose hereunder. In any case where notice to holders of
Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular holder of a Registered Security shall affect the
sufficiency of such notice with respect to other holders of
Registered Securities or the sufficiency of any notice to holders
of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
holders of Bearer Securities as provided above, then such
notification as shall be given with the approval of the Trustee
shall constitute sufficient notice to such holders for every
purpose hereunder. Neither the failure to give notice by
publication to holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency
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of any notice to holders of Registered Securities given as
provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
holders of Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
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, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or demand, no additional
certificate or opinion need be furnished.
Each Officer's Certificate and Opinion of Counsel 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 15.06. Legal Holidays.
In any case where the date of maturity of interest on or
principal of the Securities or the date fixed for redemption of
any Securities shall be a Saturday or Sunday or a legal holiday
in New York, New York or Charlotte, North Carolina or in such
other place or places as the Company may designate pursuant to
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Section 4.02, or a day on which banking institutions in The City
of New York or Charlotte, North Carolina or in such other place
or places are authorized by law or required by executive order to
close, then payment of interest or principal (and premium, if
any) need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION 15.07. 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 317, inclusive, of the Trust Indenture
Act of 1939, such required provision shall control.
SECTION 15.08. Execution 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.
SECTION 15.09. Governing Law.
This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance
with the laws of said State.
SECTION 15.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture, hereby
accepts the trusts in this Indenture declared and provided, upon
the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, NATIONSBANK CORPORATION has caused this
Indenture to be signed and acknowledged by its Chairman of the
Board or its President or one of its Vice Presidents, and its
corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and
BankAmerica National Trust Company has caused this Indenture to
be signed and acknowledged by one of its Vice Presidents, and its
corporate seal to be affixed hereunto, and the same to be
attested by one of its Assistant Secretaries, all as of the day
and year first above written.
NATIONSBANK CORPORATION
ATTEST:
By /s/ John E. Mack
Senior Vice President
/s/ Mary-Ann Lucas
[Corporate Seal]
BANKAMERICA NATIONAL TRUST COMPANY,
AS TRUSTEE
ATTEST:
By /s/ Sean Cullen
Vice President
/s/ Thomas Hacker
[Corporate Seal]
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<PAGE>
STATE OF NORTH CAROLINA)
: ss.:
COUNTY OF MECKLENBURG)
On the 31st day of January, 1995 before me personally
came John E. Mack, to me known, who, being by me duly
sworn, did depose and say that (s)he resides at
Charlotte, North Carolina, that (s)he is Senior Vice President
of NationsBank Corporation, one of the
parties described in and which executed the above instrument;
that (s)he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that
it was so affixed by authority of the board of directors of said
corporation, and that he signed (his) name thereto by
like authority.
/s/ Melva Hanna
Notary Public
10-27-95
[NOTARIAL SEAL]
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 30th day of January, 1995 before me personally
came Sean Cullen, to me known, who, being by me duly
sworn, did depose and say that (s)he resides at One World
Trade Center, 18th Floor, New York, N.Y. 10048, that (s)he is
Vice President of BankAmerica National Trust Company as
Trustee, one of the parties described in and which executed the
above instrument; that (s)he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the board
of directors of said corporation, and that he signed (his)
name thereto by like authority.
/s/ Walter M. Butler
Notary Public
[NOTARIAL SEAL]
95
Expires: 2-17-96
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE (1) BEARER SECURITY,
(2) SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL
SECURITY OR (3) INTEREST ON A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities]
This is to certify that the above-captioned Securities are
being acquired by or on behalf of, (or for offer to resell or for
resale to), and if this certificate is being delivered in
connection with a payment of interest, were beneficially owned by
or on behalf of, (a) a person (other than a financial institution
for purposes of resale during the restricted period) who is not a
United States person; or (b) a United States person (other than a
financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person acquiring
such Securities through the foreign branch of a United States
financial institution and who for purposes of this certification
holds such Securities through such financial institution on the
date hereof, and, in the case of either (i) or (ii), such United
States financial institution has agreed, for the benefit of the
Company, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as from time to
time amended, and the regulations thereunder; or (c) a financial
institution for purposes of resale during the restricted period
and such financial institution has not acquired such Securities
for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions. If the undersigned is a clearing organization, the
undersigned has obtained a similar certificate from its member
organizations on which this certificate is based; provided, however,
that if the undersigned has actual knowledge that the information
contained in such a certificate is false (and, absent documentary
evidence that the beneficial owner of such Security is not a
United States person, it will be deemed to have actual knowledge
that such certificate is false if it has a United States address
for such beneficial owner, other than a financial institution
described above), the undersigned will not deliver a Security in
temporary or definitive bearer form to the person who signed such
certificate notwithstanding the delivery of such certificate to
the undersigned.
As used herein, "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
<PAGE>
United States and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(1)(v) of the Treasury Regulations.
We undertake to advise you by telex if the above statement
as to beneficial ownership is not correct on the date of delivery
of the above-captioned Securities or on the interest payment date
with respect to the above-captioned Securities, as the case may
be, as to all of such Securities.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _____________, 19__
[To be dated on or after
______________, 19__ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security or Interest]
________________________
(Authorized Signatory)
Name:____________________
Title:___________________
A-2
<PAGE>
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based on certificates we have
received from each of the persons appearing in our records as
persons entitled to a portion of ___________ principal amount of
the above-captioned Securities (our "Qualified Account Holders")
substantially in the form set out in Exhibit A.1 to the Indenture
relating to the above-captioned Securities, such principal amount
of Securities (a) is owned by a person (other than a financial
institution for purposes of resale during the restricted period)
who is not a United States person; (b) is owned by a United
States person (other than a financial institution for purposes of
resale during the restricted period) who is (i) a foreign branch
of a United States financial institution or (ii) a United States
person who acquired such Securities through the foreign branch of
a United States financial institution and who for purposes of
this certification holds such Securities through such financial
institution on the date hereof and, in either case, such United
States financial institution has agreed, for the benefit of the
Company, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as from time to
time amended, and the regulations thereunder; or (c) is owned by
a financial institution for purposes of resale during the
restricted period and such financial institution has certified
that it has not acquired such Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
To the extent that we have knowledge that any of such
certificates from a Qualified Account Holder is false and to the
extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not
submitting for exchange any portion of the temporary global
Security attributable thereto.
We further certify that as of the date hereof we have not
received any notification from any of our Qualified Account
Holders to the effect that the statements made by such Qualified
Account Holders with respect to any portion of the part submitted
herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
As used herein, "United States person" means a citizen or
resident of the United States, a corporation, partnership or
A-3
<PAGE>
other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _________________, 19___
[To be dated no earlier than the
Exchange Date]
[Morgan Guaranty Trust
Company of New York, Brussels
Office, as Operator of the
Euroclear System]
[Cedel S.A.]
By:________________________________
A-4
<PAGE>
EXHIBIT A.3
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. TO OBTAIN INTEREST]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that interest payable on the interest
payment date[s] on [insert date(s)] will be paid with respect to
_____ principal amount of the above-captioned Securities with
respect to which we have received from the persons appearing in
our records as being entitled to interest payable on such date
(our "Qualified Account Holders") certificates substantially in
the form set out in Exhibit A.1 to the Indenture relating to the
above-captioned Securities that such Securities (a) are owned by
a person (other than a financial institution for purposes of
resale during the restricted period) who is not a United States
person; (b) are owned by a United States person (other than a
financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person who acquired
such Securities through the foreign branch of a United States
financial institution and who for purposes of this certification
holds such Securities through such financial institution on the
date hereof and, in either case, such United States financial
institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as from time to time amended, and
the regulations thereunder; or (c) are owned by a financial
institution for purposes of resale during the restricted period
and such financial institution has certified that it has not
acquired such Securities for purposes of resale directly or
indirectly to a United States person or to a person within the
United States or its possessions.
To the extent that we have knowledge that any of such
certificates from a Qualified Account Holder is false and to the
extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not
requesting that payment be made for interest with respect
thereto.
We further certify that as of the date hereof we have not
received any notification from any of our Qualified Account
Holders to the effect that the statements made by such Qualified
Account Holders with respect to any interest payment on any
portion of the principal amount of the Securities referred to
above are no longer true and cannot be relied upon as of the date
hereof.
A-5
<PAGE>
We undertake that any interest received by us and not paid
as provided above shall be returned to the Trustee for the above-
captioned Securities immediately prior to the expiration of two
years after such interest payment date in order to be repaid by
such Trustee to the above issuer at the end of two years after
such interest payment date.
As used herein, "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 and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _________________, 19___
[To be dated on or after the
most recent relevant interest
payment date]
[Morgan Guaranty Trust
Company of New York, Brussels
Office, as Operator of the
Euroclear System]
[Cedel S.A.]
By:________________________________
A-6
[FORM OF SENIOR NOTE]
REGISTERED
NUMBER R______ [U.S.]$_________
CUSIP 638585 ___
THIS NOTE IS NOT A SAVINGS ACCOUNT
OR A DEPOSIT, IS NOT AN OBLIGATION
OF OR GUARANTEED BY ANY BANKING OR
NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
______% _______________ NOTE, DUE ____
NATIONSBANK CORPORATION, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
,
or registered assigns, the principal sum of
_________________________ [United States DOLLARS] on
_____________________, 19___, and to pay interest on said
principal sum, [semi-annually in arrears on ____________________
and ___________________ of each year,] at the [rate of ___% per
annum/variable interest rate provisions], from the ____________
or ____________, as the case may be, next preceding the date of
this Note to which interest has been paid, unless the date hereof
is a date to which interest has been paid, in which case from the
date of this Note, or unless no interest has been paid on the
Notes, in which case from ________________________, 19___, until
payment of such principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after a
record date for the Notes (which shall be the close of business
on the last day of the calendar month next preceding an interest
payment date) and before the next succeeding interest payment
date, this Note shall bear interest from such interest payment
date; provided, however, that if the Company shall default in the
payment of interest due on such interest payment date, then this
Note shall bear interest from the next preceding interest payment
date to which interest has been paid, or, if no interest has been
paid on the Notes from __________________, 19___. The interest
so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in such Indenture, be
paid to the person in whose name this Note (or one or more
predecessor Notes evidencing all or a portion of the same debt as
this Note) is registered at the close of business on the record
date for such interest payment date. The principal of and
interest on this Note are payable [in such coin or currency of
the United States of America as at the time of payment is legal
tender for payment of public and private debts, at the office or
agency of the Company in the Borough of Manhattan, The City of
New York or such other places that the Company shall designate as
provided in the Indenture] [at the option of the holder (a) at
the office or agency of the Company in the Borough of Manhattan,
the City of New York or such other place or places that the
Company shall designate as provided in such Indenture, in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts or (b) subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in
the Indenture) to rescind the designation of any paying agent, at
the [main] offices of __________ in __________, __________ in
__________, __________ in __________, __________ in __________
and __________ in __________, or at such other offices or
agencies as the Company may designate, by [United States dollar]
check drawn on, or transfer to a [United States dollar] account
maintained by the payee with, a bank in [the City of New York]
(so long as the applicable paying agent has received proper
transfer instructions in writing)]; provided, however, that
interest may be paid, at the option of the Company, by [United
States dollar] check mailed to the person entitled thereto at his
address last appearing on the Security Register of the Company
relating to the Notes. Any interest not punctually paid or duly
provided for shall be payable as provided in such Indenture.
[If Securities of the series are to be offered to United
States Aliens, insert The Company will pay to the holder of
this Note who is a United States Alien (as defined below) such
additional amounts as may be necessary in order that every net
payment of the principal of and interest on this Note, after
deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed by
the United States (as defined below) or any political subdivision
or taxing authority thereof or therein upon or as a result of
such payment, will not be less than the amount provided for in
this Note to be then due and payable; provided, however, that the
Company shall not be required to make any payment of additional
amounts for or on account of:
(a) any tax, assessment or other governmental charge
which would not have been imposed but for (i) the existence
of any present or former connection between such holder (or
between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such holder, if
such holder is an estate, trust, partnership or corporation)
and the United States, including, without limitation, such
holder (or such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a citizen or
resident thereof or being or having been present or engaged
in trade or business therein or having or having had a
permanent establishment therein or (ii) the presentation by
the holder of such Note for payment on a date more than 10
days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer,
personal property tax or similar tax, assessment or other
governmental charge;
(c) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as
a personal holding company or foreign personal holding
company with respect to the United States or as a corporation
which accumulates earnings to avoid United States federal
income tax;
(d) any tax, assessment or other governmental charge
which is payable otherwise than by withholding from payments
of principal of or interest on, such Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment
of principal of or interest on, the Notes, if such payment
can be made without such withholding by any of the other
paying agents in Western Europe;
(f) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to
comply with certification, information, documentation or
other reporting requirements concerning the nationality,
residence, identity or connections with the United States of
the holder or beneficial owner of such Note, if such
compliance is required by statute or by regulation of the
United States Treasury Department as a pre-condition to
relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge
imposed on interest received by (i) a 10% shareholder (as
defined in Section 871(h)(3)(B) of the United States Internal
Revenue Code of 1986, as amended (herein called the "Code"),
and the regulations that may be promulgated thereunder) of
the Company or (ii) a controlled foreign corporation within
the meaning of the Code; or
(h) any combination of items (a), (b), (c), (d), (e), (f)
and (g);
nor will additional amounts be paid with respect to any payment
of principal of or interest on this Note to any holder which is a
United States Alien who is a fiduciary or partnership or other
than the sole beneficial owner of any such payment to the extent
that a beneficiary or settlor with respect to such fiduciary, a
member of such a partnership or the beneficial owner would not
have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the holder
of this Note. Except as specifically provided in the Notes of
this series, the Company shall not be required to make any
payment with respect to any tax, assessment or governmental
charge imposed by any government or any political subdivision
thereof or taxing authority therein. Whenever in this Note there
is mentioned, in any context, the payment of the principal of or
interest on, or in respect of, a Note, such mention shall be
deemed to include mention of the payment of additional amounts
provided for herein to the extent that, in such context,
additional amounts are, were or would be payable in respect
thereof pursuant to the provisions hereof and express mention of
the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional
amounts in those provisions hereof where such express mention is
not made. The term "United States Alien" means any person who,
for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust or a foreign
partnership to the extent that one or more of its members is, for
United States federal income tax purposes, a foreign corporation,
a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust, and the term "United States" means
the United States of America (including the States and the
District of Columbia).]
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this
Note shall not be entitled to any benefit under such Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by manual or facsimile signature under its
corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION,
Attest:
By:
Secretary Chairman and
Chief Executive Officer
[CORPORATE SEAL]
Dated
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
,
as Trustee,
[By:
as Authenticating Agent]
By:
Authorized Signatory
[Reverse Side of Note]
NATIONSBANK CORPORATION
______% __________ NOTE, DUE __________
This Note is one of a duly authorized issue of Securities of
the Company unlimited in aggregate principal amount (herein
called the "Notes") issued and to be issued under an Indenture
dated as of __________ (herein called the "Indenture"), between
the Company and __________ (herein called the "Trustee," which
term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the holders of the
Notes [and any coupons appertaining thereto], and the terms upon
which the Notes are, and are to be, authenticated and delivered.
This Note is also one of the Notes designated as the [_____%
___________] Notes, due __________ limited in aggregate principal
amount to [U.S.] $__________. [The Notes are issuable as Bearer
Securities [, with interest coupons attached,] in the
denomination of U.S. $__________, and as Registered Securities,
without coupons, in denominations of U.S. $__________ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Bearer
Securities and Registered Securities of this series are
exchangeable for a like aggregate principal amount of Registered
Securities of this series and of like tenor and of any authorized
denominations, as requested by the holder surrendering the same,
upon surrender of the Note or Notes to be exchanged at any office
or agency described below where Registered Securities of this
series may be presented for registration of transfer [Registered
Securities, including Registered Securities received in exchange
for Bearer Securities, may not be exchanged for Bearer
Securities]].
[If Securities of the series are to be offered to United
States Aliens, insert The Note may be redeemed, as a whole but
not in part, at the option of the Company, at a redemption price
equal to 100% of their principal amount, together with interest
accrued to the date fixed for redemption, if, as a result of any
amendment to, or change in, the laws (or any regulations or
rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
affecting taxation, or any amendment to or change in an official
position regarding the application or interpretation of such
laws, regulations or rulings, which amendment or change is
effective on or after __________, 19__, the Company will become
obligated to pay additional amounts (as described on the face
hereof) on the next succeeding interest payment date, provided
that such obligation to pay additional amounts cannot be avoided
by the use of reasonable measures available to the Company;
provided, however, that in the opinion of the Company, which
opinion shall be rendered in good faith, such measures need not
be used if they have or will have a material adverse impact on
the conduct of its business; provided further, however, that (a)
no notice of such redemption may be given earlier than 90 days
prior to the earliest date on which the Company would be
obligated to pay such additional amounts were a payment in
respect of the Notes then due, and (b) at the time notice of such
redemption is given, such obligation to pay such additional
amounts remains in effect. Immediately prior to the giving of
any notice of redemption pursuant to this paragraph, the Company
shall deliver to the Trustee a 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 an opinion of
counsel to the Company to such effect based on such statement of
facts.]
[If the Securities of the series are issuable as Bearer
Securities and if applicable*, insert In addition, if the
Company determines that any payment made outside the United
States and its possessions by the Company or any of its paying
agents of the full amount of principal or interest due with
respect to any Bearer Security or coupon would, under any present
or future laws or regulations of the United States affecting
taxation or otherwise, be subject to any certificate,
information, documentation 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
Bearer Security or coupon who is a United States Alien (as
defined herein) (other than such a requirement (a) which would
not be applicable to a payment made by the Company or any one of
its paying agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, or
(b) which can be satisfied by the custodian, nominee or other
agent certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of
such beneficial owner is not otherwise subject to any such
requirement or (c) which would not be applicable to a payment
made to any other paying agent in Western Europe), the Company at
its election will either (x) redeem the Notes, as a whole but not
in part, at a redemption price equal to 100% of their principal
amount, together with interest accrued to the date fixed for
redemption, or (y) if and so long as any such certification,
information, documentation or other reporting requirement would
be fully satisfied by payment of a backup withholding tax or
similar charge, pay to the holders of Bearer Securities who are
United States Aliens certain additional amounts specified in the
Bearer Securities of this series. The Company will make such
*Generally this provision will only be applicable if the
Securities of the series bear interest at a fixed rate.
determination and election and notify the Trustee thereof as soon
as practicable, and the Trustee will promptly give notice of such
determination in the manner provided below (the "Determination
Notice"), in each case stating the effective date of such
certification, information, documentation or other reporting
requirement, whether the Company will redeem the Notes or will
pay to the holders of Bearer Securities who are United States
Aliens the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which the
redemption of the Notes must take place. If the Company elects
to redeem the Notes, such redemption shall take place on such
date, not later than one year after publication of the
Determination Notice, as the Company elects by notice to the
Trustee at least 75 days before such date, unless shorter notice
is acceptable to the Trustee. Upon receipt of notice from the
Company as to the date of redemption, the Trustee shall cause
notice thereof to be duly given in the manner provided below.
Notwithstanding the foregoing, the Company will not so redeem the
Notes if the Company subsequently determines, not less than 30
days prior to the date fixed for redemption, that subsequent
payments on Notes would not be subject to any such requirement,
in which case the Company will promptly notify the Trustee, which
will promptly give notice of that determination in the manner
provided below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts to
the holders of Bearer Securities who are United States Aliens,
and as long as the Company is obligated to pay such additional
amounts to such holders, the Company may subsequently redeem the
Notes, at any time, as a whole but not in part, at a redemption
price equal to 100% of their principal amount, together with
interest accrued to the date fixed for redemption, including any
additional amounts required to be paid but without reduction for
applicable United States of America withholding taxes.]
[Insert Additional Provisions Relating to Determination and
Payment of Interest]
[[Except as otherwise provided herein, the Notes are not
subject to any sinking fund and are not subject to redemption at
the option of the Company prior to maturity.]
[The provisions of Article Fourteen of the Indenture do not
apply to Securities of this series.]
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register of the Company relating to
the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company at
_________________ designated by it pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee or
the Security Registrar duly executed by, the registered holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new [Registered Securities/Notes], of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
[If the Notes are not issuable as Bearer Securities, insert
The Notes are issuable only as registered Notes without coupons
in the denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture, and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of different authorized denominations,
as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
[If the Note is payable in a currency other than U.S. Dollars
(the "Specified Currency"), the Note may contain certain
provisions relating to the calculation and payment of the
Specified Currency, including:
(1) In the event of an official redenomination of the
Specified Currency (including any Specified Currency that
is a composite currency) the obligation of the Company
with respect to payments on Notes denominated in the
Specified Currency shall, in all cases be deemed
immediately following such redenomination to provide for
the payment of that amount of redenominated currency
representing the amount for such obligations immediately
before such redenomination.
(2) If payment on a Note is required to be made in a
Specified Currency and such currency is unavailable due
to the imposition of exchange controls or other
circumstances beyond the Company's control, or is no
longer used by the government of the country issuing such
currency for the settlement of transactions by public
institutions of or within the international banking
community, then all payments due on such date with
respect to such Note shall be made in U.S. dollars until
such currency is again available or so used. The amount
so payable on any date in such foreign currency shall be
converted into U.S. dollars on the basis of the Market
Exchange Rate (hereinafter defined) on the last date such
Specified Currency was available. The "Market Exchange
Rate" with respect to any currency other than U.S.
dollars means, for any day, the noon dollar buying rate
in the City of New York on such day for cable transfers
of such currency as published by the Federal Reserve Bank
of New York, or, if such rate is not published for such
day, the equivalent rate as determined by the Paying
Agent.
(3) If the official unit of any component currency is
altered by way of combination or subdivision, the number
of units of that currency as a component shall be divided
or multiplied in the same proportion. If two or more
component currencies are consolidated into a single
currency, the amounts of those currencies as components
shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated
component currencies expressed in such single currency.
If any component currency is divided into two or more
currencies, the amount of the original component currency
as a component shall be replaced by the amounts of such
two or more currencies having an aggregate value on the
date of division equal to the amount of the former
component currency immediately before such division. Any
payment required to be made on Notes denominated in a
Specified Currency other than U.S. dollars which is
instead made in U.S. dollars under the circumstances
described above will not constitute a default under the
Indenture.]
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee and any agent of the Company or
the Trustee may treat the person in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default (defined in the Indenture) shall occur
with respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration
provided in the Indenture in case of a default in the payment of
interest or the performance of any other covenant by the Company.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes [and any related coupons] under the
Indenture at any time by the Company with the consent of the
holders of 66-2/3% in aggregate principal amount of the Notes
then outstanding and all other Securities then outstanding issued
under the Indenture and affected by such amendment and
modification. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the
Notes then outstanding and all other Securities then outstanding
issued under the Indenture and affected thereby, on behalf of the
holders of all such Securities [and any related coupons], to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and interest [(including any additional amounts, as
described herein)] on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly
waived and released.
The Notes of this series shall be dated the date of their
authentication.
[If the Notes are issuable as Bearer Securities, insert The
Indenture, the Notes and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the
State of New York.]
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
__________
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT _________ Custodian _________(Cust)(Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above
list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code, must be
printed or typewritten.)
the within
Note, and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever and must be guaranteed.
[Notes issued in bearer form will contain additional legends and
restrictions on transfer required by any Depositary and by the Internal
Revenue Code and Regulations thereunder, including that required by
Internal Revenue Code Section 163(f)(2)(B)]
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following legend is
applicable. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF
OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES __
(Fixed Rate) CUSIP 638585 ____
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
*Applies only if this Note is a Global Security.
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to ________
_______________________________________________________________,
or registered assigns, the principal sum of ___________________
DOLLARS on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest on said principal sum, semiannually in
arrears on ____________ and __________ of each year (each an
"Interest Payment Date"), at the Interest Rate per annum
specified above, until payment of such principal sum has been
made or duly provided for, commencing on the first Interest
Payment Date next succeeding the Original Issue Date specified
above, unless the Original Issue Date occurs between a Regular
Record Date, as defined below, and the next succeeding Interest
Payment Date, in which case commencing on the Interest Payment
Date following the next succeeding Regular Record Date, and on
the Stated Maturity Date shown above (or any Redemption Date as
defined on the reverse hereof or any Optional Repayment Date with
respect to which option such has been exercised, each such Stated
Maturity Date, Redemption Date and Optional Repayment Date being
herein referred to as a "Maturity Date" with respect to the
principal payable on such date). Interest on this Note will
accrue from the Original Issue Date specified above until the
principal amount is paid and will be computed on the basis of a
360-day year of twelve 30-day months. Interest payments will be
in the amount of interest accrued from and including the next
preceding Interest Payment Date in respect of which interest has
been paid or duly provided for or, if no interest has been paid,
from the Original Issue Date specified above, to but excluding
the Interest Payment Date or Maturity Date, as the case may be.
If the Maturity Date or an Interest Payment Date falls on a day
which is not a Business Day as defined below, principal or
interest payable with respect to such Maturity Date or Interest
Payment Date will be paid on the next succeeding Business Day
with the same force and effect as if made on such Maturity Date
or Interest Payment Date, as the case may be, and no additional
interest shall accrue for the period from and after such Maturity
Date or Interest Payment Date. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions, be paid to the person
in whose name this Note (or one or more predecessor Notes
evidencing all or a portion of the same debt as this Note) is
registered at the close of business on the Regular Record Date,
which shall be the __________ or the __________, whether or not a
Business Day, as the case may be, next preceding such Interest
Payment Date; provided, however, that the first payment of
interest on any Note with an Original Issue Date, as specified
above, between a Regular Record Date and an Interest Payment Date
or on an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to
the person in whose name this Note is registered at the close of
business on such next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date
will be payable to the person to whom the principal hereof shall
be payable. Any interest not punctually paid or duly provided
for shall be payable as provided in the Indenture. As used
herein, "Business Day" means any day, other than a Saturday or
Sunday, on which banks in The City of New York, Charlotte, North
Carolina or _________________ are not authorized or required by
law to be closed.
The principal of and interest on this Note are payable in
immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts at the office or
agency of the Company designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of
the Company, by check mailed to the person entitled thereto at
his address last appearing on the registry books of the Company
relating to the Notes. Notwithstanding the preceding sentence,
payments of principal of and interest payable on the Maturity
Date will be made by wire transfer of immediately available funds
to a designated account maintained in the United States upon (i)
receipt of written notice by the Trustee from the holder hereof
not less than one Business Day prior to the due date of such
principal and (ii) presentation of this Note to NationsBank of
Georgia, National Association, as Paying Agent at Corporate Trust
Administration, 600 Peachtree Street, Suite 900, Atlanta, Georgia
60608 (the "Corporate Trust Office").
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee by NationsBank of Georgia, National
Association, as Authenticating Agent, by manual signature, this
Note shall not be entitled to any benefit under such Indenture or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be duly executed, by manual or facsimile signature, under its
corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By: _______________________________
[SEAL] Title: Senior Vice President and
Treasurer
ATTEST:
By:______________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:_____________
BankAmerica National Trust Company,
as Trustee
By: NationsBank of Georgia,
National Association,
as Authenticating Agent
By:__________________________
Authorized Signatory
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES __
(Fixed Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Company unlimited in aggregate principal amount
(herein called the "Notes") issued and to be issued under an
Indenture dated as of January 1, 1995 (herein called the
"Indenture"), between the Company and BankAmerica National Trust
Company as Trustee (herein called the "Trustee,") to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights thereunder
of the Company, the Trustee and the holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is also one of the Notes designated as the
Company's Senior Medium-Term Notes, Series __, limited in
aggregate principal amount to $_____________. The Notes may bear
different dates, mature at different times, bear interest at
different rates and vary in such other ways as are provided in
the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the
holder on the Optional Repayment Date(s), if any, indicated on
the face hereof. If no Optional Repayment Dates are set forth on
the face hereof, this Note may not be so repaid at the option of
the holder hereof prior to the Stated Maturity Date. On any
Optional Repayment Date this Note shall be repayable in whole or
in part in increments of $1,000 at the option of the holder
hereof at a repayment price equal to 100% of the principal amount
to be repaid, together with interest thereon payable to the date
of repayment. For this Note to be repaid in whole or in part at
the option of the holder hereof, this Note must be received, with
the form entitled "Option to Elect Repayment" below duly
completed, by the Trustee/Paying Agent at the Corporate Trust
Office, or such other address of which the Company shall from
time to time notify the holders of the Notes, not more than 60
nor less than 30 days prior to an Optional Repayment Date.
Exercise of such repayment option by the holder hereof shall be
irrevocable.
[Notes issued in bearer form or payable in a currency other
than U.S. dollars will contain additional provisions relating to
payment, payment currency and depositary procedures as well as
provisions relating to United States tax and withholding laws.]
This Note may be redeemed at the option of the Company on
any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). If no
Initial Redemption Date is set forth on the face hereof, this
Note may not be redeemed at the option of the Company prior to
the Stated Maturity Date. On and after the Initial Redemption
Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 at the option
of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this
Note in part only, a new Note for the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Company, the
"Redemption Price" shall initially be the Initial Redemption
Percentage, specified on the face hereof, of the principal amount
of this Note to be redeemed and shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of
the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
If an Event of Default (defined in the Indenture as (i) the
Company's failure to pay principal of (or premium, if any, on)
the Notes when due, or to pay interest on the Notes within thirty
days after the same becomes due, (ii) the Company's breach of its
other covenants contained in this Note or in the Indenture, which
breach is not cured within ninety days after written notice by
the Trustee or by the holders of at least 25% in outstanding
principal amount of all Securities issued under the Indenture and
affected thereby, and (iii) certain events involving the
bankruptcy, insolvency or liquidation of the Company) shall occur
with respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes under the Indenture at any time by the
Company with the consent of the holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding and
all other Securities then outstanding under the Indenture and
affected by such amendment and modification. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of Notes then outstanding and all
other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all Securities, to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for issue hereof, expressly
waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the registry books of the Company relating to the
Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company designated by it pursuant
to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes,
of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
[Bearer Notes will contain additional conforming
provisions.]
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The
Notes are being issued by means of a book-entry system with no
physical distribution of certificates to be made except as
provided in the Indenture. The book-entry system maintained by
Depository Trust Company ("DTC") will evidence ownership of the
Notes, with transfers of ownership effected on the records of DTC
and its participants pursuant to rules and procedures established
by DTC and its participants. The Company will recognize Cede &
Co., as nominee of DTC, while the registered Owner of the Notes,
as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal
and interest to participants of DTC will be the responsibility of
DTC, and transfer of principal and interest to beneficial owners
of the Notes by participants of DTC will be the responsibility of
such participants and other nominees of such beneficial owners.
So long as the book-entry system is in effect, the selection of
any Notes to be redeemed will be determined by DTC pursuant to
rules and procedures established by DTC and its participants.
The Company will not be responsible or liable for such transfers
of payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons acting
through such participants.]
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture. ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the within Note shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--..........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the
above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing _____________________________________
Attorney to transfer said Note on the books of the Company, with
full power of substitution in the premises.
Dated: ________________________ _________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular, without alteration or enlargement, or any change
whatever and must be guaranteed. [OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Company to repay this Note (or portion hereof
specified below) pursuant to its terms at a price equal to the
principal amount hereof together with interest to the repayment
date, to the undersigned, at _________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at
__________________, or at such other place or places of which the
Company shall from time to time notify the Holder of this Note,
not more than 60 nor less than 20 days prior to an Optional
Repayment Date, if any, shown on the face of this Note, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to
be repaid, specify the portion hereof (which shall be in
increments of $1,000) which the Holder elects to have repaid and
specify the denomination or denominations (which shall be
$__________ or an integral multiple of $l,000 in excess of
$__________) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not
being repaid).
$_______________________ _________________________________
DATE: __________________ NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change
whatever.]
[Notes issued in bearer form will contain additional legends and
restrictions on transfer required by the Depositary and by the Internal
Revenue Code and Regulations thereunder, including that required by
Internal Revenue Code Section 163(f)(2)(B)]
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following legend is
applicable. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF
OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES D
(Floating Rate)
CUSIP 638585 _________
ORIGINAL ISSUE DATE:
STATED MATURITY DATE:
INITIAL INTEREST RATE:
INTEREST RATE BASIS:
INDEX MATURITY FOR INITIAL
INTEREST RATE (IF DIFFERENT):
INDEX MATURITY:
INDEX MATURITY FOR FINAL
INTEREST PAYMENT PERIOD
(IF DIFFERENT):
SPREAD:
SPREAD MULTIPLIER:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES:
INTEREST RATE RESET PERIOD:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
____________________
* Applies only if this Note is a Global Security.
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT:
ADDITIONAL TERMS:
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
______________________________________________________________,
or registered assigns, the principal sum of ________________
DOLLARS on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest thereon at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest
Reset Date specified above and thereafter at a rate determined in
accordance with the provisions on the reverse hereof, depending
upon the appropriate Interest Rate Basis and Index Maturity
specified above, until the principal hereof is paid or duly made
available for payment. The Company will pay interest on the
Interest Payment Dates specified above, commencing with the first
Interest Payment Date next succeeding the Original Issue Date
specified above, unless the Original Issue Date occurs between a
Regular Record Date, as defined below, and the next succeeding
Interest Payment Date, in which case commencing on the Interest
Payment Date following the next succeeding Regular Record Date,
and on the Stated Maturity Date shown above (or any Redemption
Date as defined on the reverse hereof or any Optional Repayment
Date with respect to which such option has been exercised, each
such Stated Maturity Date, Redemption Date and Optional Repayment
Date being herein referred to as a "Maturity Date" with respect
to the principal repayable on such date). Interest on this Note
will accrue from the Original Issue Date specified above until
the principal amount is paid and will be computed as hereinafter
described. Interest payable on this Note on any Interest Payment
Date or the Maturity Date will include interest accrued from and
including the next preceding Interest Payment Date in respect of
which interest has been paid or duly provided for or, if no
interest has been paid, from the Original Issue Date specified
above, to but excluding such Interest Payment Date or Maturity
Date, as the case may be; provided, however, that if the Interest
Rate Reset Period with respect to this Note is daily or weekly,
interest payable on any Interest Payment Date or the Maturity
Date will include interest accrued from but excluding the Regular
Record Date through which interest has been paid to and including
the Regular Record Date next preceding such Interest Payment
Date, except that interest payable on any such Maturity Date will
include interest accrued to, but excluding, such Maturity Date.
If any Interest Payment Date falls on a day which is not a
Business Day, as defined below, such Interest Payment Date shall
be the following day that is a Business Day, except that if the
Interest Rate Basis is LIBOR, if such next Business Day falls in
the next succeeding calendar month, such Interest Payment Date
will be the preceding day that is a Business Day; and if the
Maturity Date falls on a day which is not a Business Day,
principal or interest payable with respect to such Maturity Date
will be paid on the next succeeding Business Day with the same
force and effect as if made on such Maturity Date, and no
additional interest shall accrue for the period from and after
such Maturity Date. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject
to certain exceptions, be paid to the person in whose name this
Note (or one or more predecessor Notes evidencing all or a
portion of the same debt as this Note) is registered at the close
of business on the date 15 calendar days prior to such Interest
Payment Date, whether or not a Business Day (the "Regular Record
Date"); provided, however, that the first payment of interest on
any Note with an Original Issue Date, as specified above, between
a Regular Record Date and an Interest Payment Date or on an
Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the person
in whose name this Note is registered at the close of business on
such next succeeding Regular Record Date; and provided, further,
that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof shall be payable. Any such
interest not punctually paid or duly provided for shall be
payable as provided in the Indenture. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, (i) on which
banks in The City of New York, Charlotte, North Carolina or
______________ are not authorized or required by law to be closed
and (ii) if the Interest Rate Basis is LIBOR, is a day on which
dealings in deposits on U.S. dollars are transacted in the London
interbank market.
The principal of and interest on this Note are payable in
immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts at the office or
agency of the Company designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of
the Company, by check mailed to the person entitled thereto at
his address last appearing on the registry books of the Company
relating to the Notes. Notwithstanding the preceding sentence,
payments of principal of and interest payable on the Maturity
Date will be made by wire transfer of immediately available funds
to a designated account maintained in the United States upon (i)
receipt of written notice by the Trustee from the holder hereof
not less than one Business Day prior to the due date of such
principal and (ii) presentation of this Note to the Issuing and
Paying Agent at NationsBank of Georgia, National Association, as
Issuing and Paying Agent, 600 Peachtree Street, Suite 900,
Atlanta, Georgia 60608 (the "Corporate Trust Office").
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature, this Note shall not
be entitled to any benefit under such Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be duly executed, by manual or facsimile signature, under its
corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:____________________________
[SEAL] Title:_________________________
ATTEST:
____________________________
_________ Secretary CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ____________________________
BankAmerica National Trust Company,
as Trustee
By: NationsBank of Georgia, National
Association as Authenticating Agent
By:__________________________
Authorized Signatory
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES __
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Company unlimited in aggregate principal amount
(herein called the "Notes") issued and to be issued under an
Indenture dated as of January 1, 1995, (herein called the
"Indenture"), between the Company and BankAmerica National Trust
Company, as Trustee (herein called the "Trustee,") to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights thereunder
of the Company, the Trustee and the holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is also one of the Notes designated as the
Company's Senior Medium-Term Notes, Series __ (herein called the
"Notes"), limited in aggregate principal amount to
$_____________. The Notes may bear different dates, mature at
different times, bear interest at different rates and vary in
such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the
holder only if the Optional Repayment Date(s) are indicated on
the face hereof. IF NO OPTIONAL REPAYMENT DATES ARE SET FORTH ON
THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID AT THE OPTION OF
THE HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any
Optional Repayment Date, this Note shall be repayable in whole or
in part in increments of $1,000 at the option of the holder
hereof at a repayment price equal to 100% of the principal amount
to be repaid, together with interest thereon payable to the date
of repayment. For this Note to be repaid in whole or in part at
the option of the holder hereof, this Note must be received, with
the form below entitled "Option to Elect Repayment" duly
completed, by the Trustee/Paying Agent at the Corporate Trust
Office, or such other address of which the Company shall from
time to time notify the holders of the Notes, not more than 60
nor less than 30 days prior to an Optional Repayment Date.
Exercise of such repayment option by the holder hereof shall be
irrevocable.
[Notes issued in bearer form or payable in a currency other than U.S.
dollars will contain additional provisions relating to payment, payment
currency and Depositary procedure, as well as provisions relating to
United States tax and withholding laws]
This Note may be redeemed at the option of the Company on
any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). IF NO
INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE HEREOF, THIS
NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE COMPANY PRIOR TO
THE STATED MATURITY DATE. On and after the Initial Redemption
Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 at the option
of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this
Note in part only, a new Note for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Company, the
"Redemption Price" shall initially be the Initial Redemption
Percentage, specified on the face hereof, of the principal amount
of this Note to be redeemed and shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of
the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
Accrued interest hereon shall be calculated by multiplying
the face amount hereof by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest
factor calculated for each day from and including the Original
Issue Date, or from but excluding the last date to which interest
has been paid, as the case may be, to and including the date for
which accrued interest is being calculated. The interest factor
(expressed as a decimal) for each such day shall be computed by
dividing the interest rate in effect on such day by 360 or, in
the case of Notes having the Treasury Rate as their Interest Rate
Basis, by the actual number of days in the year.
Except as described below, this Note will bear interest at
the rate determined by reference to the appropriate Interest Rate
Basis and Index Maturity shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread
Multiplier, if any, specified on the face hereof. The interest
rate in effect on each day shall be (a) if such day is an
Interest Reset Date, the interest rate determined as of the
Interest Determination Date (as defined below) pertaining to such
Interest Reset Date or (b) if such day is not an Interest Reset
Date, the interest rate determined as of the Interest
Determination Date pertaining to the next preceding Interest
Reset Date, provided that (i) the interest rate in effect from
the Original Issue Date to the first Interest Reset Date shall be
the Initial Interest Rate specified on the face hereof, and (ii)
the interest rate in effect for the ten calendar days immediately
prior to the Maturity Date shall be the rate in effect on the
tenth calendar day preceding such Maturity Date. If any Interest
Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if the Interest Rate Basis
specified on the face hereof is LIBOR, if such next Business Day
is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. The term
"Final Interest Payment Period" means the period from the final
Interest Reset Date to the Maturity Date.
The Interest Determination Date with respect to any Note
that has as its Interest Rate Basis the CD Rate, Commercial Paper
Rate, the Federal Funds Rate or the Prime Rate will be the second
Business Day preceding the Interest Reset Date. The Interest
Determination Date with respect to LIBOR shall be the second
London Banking Day (as defined below) preceding the Interest
Reset Date. The Interest Determination Date with respect to the
Treasury Rate shall be the day of the week in which the Interest
Reset Date falls on which Treasury bills of the Index Maturity
specified on the face hereof normally would be auctioned;
provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding the Interest
Reset Date, the related Interest Determination Date shall be such
preceding Friday; and provided, further, that if an auction shall
fall on any Interest Reset Date then the Interest Reset Date
shall instead be the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the
Business Day next preceding the applicable Interest Payment Date
or Maturity Date, as the case may be.
All percentages resulting from any calculation on the Notes
will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the
Notes will be rounded to the nearest cent (with one-half cent
being rounded upward).
Determination of CD Rate. CD Rate means, with respect to an
Interest Determination Date (a "CD Rate Interest Determination
Date"), the rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit having the Index Maturity
specified on the face hereof, as such rate is published by the
Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") in "Statistical Release H.15(519), Selected
Interest Rates," or any successor publication of the Federal
Reserve Board ("H.15(519)"), under the heading "Cds (Secondary
[BMarket)," or, if not so published by 4:00 P.M., New York City
time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate
Interest Determination Date for negotiable certificates of
deposit of the Index Maturity specified on the face hereof, as
published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If such rate is not published in
either H.15(519) or the Composite Quotations by 4:00 P.M., New
York City time, on such Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent
(after consultation with the Company) for negotiable certificates
of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the
Index Maturity specified on the face hereof in denominations of
$5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth
above, the CD Rate for such CD Rate Interest Determination Date
will be the CD Rate in effect on such CD Rate Interest
Determination Date.
Determination of Commercial Paper Rate. The Commercial
Paper Rate means, with respect to an Interest Determination Date
(a "Commercial Paper Rate Interest Determination Date"), the
Money Market Yield (as defined below) of the rate on such date
for commercial paper having the Index Maturity specified on the
face hereof as published in H.15(519) under the heading
"Commercial Paper." In the event such rate is not published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, the
Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity specified on the face
hereof as published in Composite Quotations under the heading
"Commercial Paper." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on such Calculation Date, the Commercial Paper Rate for
that Commercial Paper Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00
A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper
in The City of New York selected by the Calculation Agent (after
consultation with the Company) for commercial paper of the Index
Maturity specified on the face hereof placed for an industrial
issuer whose bond rating is "AA", or the equivalent, by a
nationally recognized statistical rating agency; provided,
however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate with respect to such Commercial Paper Rate
Interest Determination Date will be the Commercial Paper Rate
then in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be the yield (expressed as a
percentage rounded to the nearest one ten-thousandth of a
percent, with five one hundred-thousandths of a percent rounded
upward) calculated in accordance with the following formula:
Money Market Yield = D x 360
-----------------------
360 - (D x M) x 100
where "D" refers to the per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and
"M" refers to the actual number of days in the interest period
for which interest is being calculated.
Determination of Federal Funds Rate. The Federal Funds Rate
means, with respect to an Interest Determination Date (a "Federal
Funds Rate Interest Determination Date"), the rate on that date
for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)." If H.15(519) is not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds Rate
Interest Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such rate
is not yet published in either H.15(519) or Composite Quotations
by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Rate Interest Determination
Date, the Federal Funds Rate for such Federal Funds Rate Interest
Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds as of 9:00 A.M., New York
City time, on such Federal Funds Rate Interest Determination Date
quoted by each of three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation
Agent (after consultation with the Company); provided, however,
that if fewer than three such brokers are so quoting such rates,
the Federal Funds Rate with respect to such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate then
in effect on such Federal Funds Rate Interest Determination Date.
Determination of LIBOR. LIBOR means the rate determined by
the Calculation Agent in accordance with the following
provisions:
(i) With respect to an Interest Determination Date (a
"LIBOR Interest Determination Date"), LIBOR will be "LIBOR
Telerate" unless "LIBOR Reuters" is specified in the
applicable pricing supplement or LIBOR Telerate is not
available. "LIBOR Telerate" is the rate for deposits in the
LIBOR Currency (as defined below) having the Index Maturity
specified on the face hereof that appears on the Designated
LIBOR Page (as defined below) specified on the face hereof
as of 11:00 A.M. London time, on that LIBOR Interest
Determination Date. "LIBOR Reuters" is that rate which is
the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page by its terms provides only
for a single rate, in which case such single rate shall be
used) for deposits in the LIBOR Currency having the Index
Maturity specified on the face hereof that appear on the
Designated LIBOR Page specified on the face hereof as of
11:00 A.M. London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such
Designated LIBOR Page. If LIBOR cannot be determined under
this clause (i), LIBOR in respect of the related LIBOR
Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii)
below.
(ii) With respect to a LIBOR Interest Determination
Date on which LIBOR cannot be determined under clause (i)
above, the Calculation Agent will request the principal
London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation
Agent (after consultation with the Company) to provide the
Calculation Agent with its offered quotation for deposits in
the LIBOR Currency for the period of the Index Maturity
specified on the face hereof to prime banks in the London
interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in
such LIBOR Currency in such market at such time. If at
least two such quotations are provided, LIBOR determined on
such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two such
quotations are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M. in the applicable
Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent
(after consultation with the Company) for loans in the LIBOR
Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal
amount that is representative for a single transaction in
such LIBOR Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest determination Date will be
LIBOR then in effect on such LIBOR Interest Determination
Date.
"LIBOR Currency" means the currency (including composite
currencies) specified on the face hereof for which LIBOR shall be
calculated. If no such currency is specified on the face hereof,
the LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters"
is specified on the face hereof, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the
London interbank rates of major banks for the applicable LIBOR
Currency, or (b) if "LIBOR Telerate" is specified on the face
hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks
for the applicable LIBOR Currency. If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR for the
applicable LIBOR Currency will be determined as if LIBOR Reuters
(and, if the U.S. dollar is the LIBOR Currency, LIBO Page) had
been specified.
"Principal Financial Center" shall generally be the capital
city of the country of the specified LIBOR Currency, except that
with respect to U.S. dollars, Deutsche Marks and ECUs, the
Principal Financial Center shall be The City of New York,
Frankfurt and Luxembourg, respectively.
Determination of Prime Rate. Prime Rate means, with respect
to an Interest Determination Date (a "Prime Rate Interest
Determination Date"), the rate set forth on such date in
H.15(519) under the heading "Bank Prime Loan," or if not so
published prior to 9:00 A.M. New York City time, on the
Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the
Reuters Screen NYMF Page (as defined below) as such bank's prime
rate or base lending rates as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but
more than one such rate appear on the Reuters Screen NYMF Page
for the Prime Rate Interest Determination Date, the Prime Rate
will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rates, quoted on the basis of the
actual number of days in the year divided by a 360-day year, as
of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City
of New York as selected by the Calculation Agent (after
consultation with the Company). If fewer than two such
quotations are provided, the Prime Rate shall be determined by
the Calculation Agent as of the close of business on the Prime
Rate Interest Determination Date, on the basis of the prime
rates, as of the close of business on such date, furnished in The
City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of
the United States, or any State thereof, having total equity
capital of at least $500 million and being subject to supervision
or examination by Federal or State authority, selected by the
Calculation Agent (after consultation with the Company) to
provide such rate or rates; provided, however, that if the banks
selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate for such Prime Rate Interest
Determination Date will be the Prime Rate then in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as
page "NYMF" on the Reuters Monitor Money Rates Service (or such
other page as may replace the NYMF page on that service for the
purpose of displaying prime rates or base lending rates of major
United States banks).
Determination of Treasury Rate. Treasury Rate means, with
respect to an Interest Determination Date (a "Treasury Rate
Interest Determination Date"), the rate for the auction held on
such Treasury Rate Interest Determination Date of direct
obligations of the United States ("Treasury Bills") having the
Index Maturity specified on the face hereof, as published in
H.15(519) under the heading "U.S. Government Securities --
Treasury Bills -- auction average (investment)." If such rate is
not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Interest
Determination Date, the Treasury Rate will be the auction average
rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) on
such Treasury Rate Interest Determination Date as otherwise
announced by the United States Department of the Treasury. In
the event that the results of the auction of Treasury bills
having the Index Maturity specified on the face hereof are not
reported as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held on such Treasury
Rate Interest Determination Date, then the Treasury Rate for such
Treasury Rate Interest Determination Date shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent (after consultation with the Company), for the issue of
Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Rate Interest Determination Date will be
the Treasury Rate then in effect on such Treasury Rate Interest
Determination Date.
[Include provisions for additional
interest rate bases]
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law,
as the same may be modified by United States law of general
application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then
in effect and, if determined, the interest rate which will become
effective as of the next Interest Reset Date.
If an Event of Default (defined in the Indenture as (i) the
Company's failure to pay principal of (or premium, if any, on)
the Notes when due, or to pay interest on the Notes within thirty
days after the same becomes due, (ii) the Company's breach of its
other covenants contained in this Note or the Indenture, which
breach is not cured within ninety days after written notice by
the Trustee or the holders of at least 25% in outstanding
principal amount of all Securities issued under the Indenture and
affected thereby, and (iii) certain events involving the
bankruptcy, insolvency or liquidation of the Company) shall occur
with respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes under the Indenture at any time by the
Company with the consent of the holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding and
all other Securities then outstanding under the Indenture and
affected by such amendment and modification. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all Securities, to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemented thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for issue hereof, expressly
waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the registry books of the Company relating to the
Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company designated by it pursuant
to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes,
of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
[Bearer Notes will contain additional conforming provisions]
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer of
this Note, the Company, the Trustee and any agent of the Company
or the Trustee may treat the [Person] in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The
Notes are being issued by means of a book-entry system with no
physical distribution of certificates to be made except as
provided in the Indenture. The book-entry system maintained by
Depository Trust Company ("DTC") will evidence ownership of the
Notes, with transfers of ownership effected on the records of DTC
and its participants pursuant to rules and procedures established
by DTC and its participants. The Company will recognize Cede &
Co., as nominee of DTC, while the registered Owner of the Notes,
as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal
and interest to participants of DTC will be the responsibility of
DTC, and transfer of principal and interest to beneficial owners
of the Notes by participants of DTC will be the responsibility of
such participants and other nominees of such beneficial owners.
So long as the book-entry system is in effect, the selection of
any Notes to be redeemed will be determined by DTC pursuant to
rules and procedures established by DTC and its participants.
The Company will not be responsible or liable for such transfers
of payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons acting
through such participants.]
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the interim Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM--as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--.............Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the
above list.
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ____________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________
Attorney to transfer said Note on the books of the Company, with
full power of substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular, without alteration or enlargement, or any change
whatever and must be guaranteed. [OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Company to repay this Note (or portion hereof
specified below) pursuant to its terms at a price equal to the
principal amount hereof together with interest to the repayment
date, to the undersigned, at ________________________________
_____________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at
______________, or at such other place or places of which the
Company shall from time to time notify the Holder of this Note,
not more than 60 nor less than 20 days prior to an Optional
Repayment Date, if any, shown on the face of this Note, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to
be repaid, specify the portion hereof (which shall be in
increments of $1,000) which the Holder elects to have repaid and
specify the denomination or denominations (which shall be
$__________ or an integral multiple of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not
being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date _______________ correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
NATIONSBANK CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
Dated as of January 1, 1995
Subordinated Debt Securities
<PAGE>
CROSS-REFERENCE SHEET*
between
Provisions of Sections 310 through 319 (a) of the Trust Indenture
Act of 1939 and the within Indenture between NationsBank
Corporation and The Bank of New York, Trustee:
SECTION OF
SECTION OF ACT INDENTURE
310(a)(l) and (2). . . . . . . . . . . . . . . 7.09
310(a)(3) and (4). . . . . . . . . . . . . . . Not applicable
310(a)(5). . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . . 7.08 and 7.10
310(c) . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) and (b) . . . . . . . . . . . . . . . . 7.13
311(c) . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . 5.01 and
5.02(a)
312(b) and (c) . . . . . . . . . . . . . . . . 5.02(b) and (c)
313(a) . . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b)(1). . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2). . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . . 5.04(c)
313(d) . . . . . . . . . . . . . . . . . . . . 5.04(d)
314(a) . . . . . . . . . . . . . . . . . . . . 4.04 and 5.03
314(b) . . . . . . . . . . . . . . . . . . . . Not applicable
314(c)(1) and (2). . . . . . . . . . . . . . . 14.04
314(c)(3). . . . . . . . . . . . . . . . . . . Not applicable
314(d) . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . 15.05
314(f) . . . . . . . . . . . . . . . . . . . . Not applicable
315(a), (c) and (d). . . . . . . . . . . . . . 7.01
315(b) . . . . . . . . . . . . . . . . . . . . 7.14 and
5.04(a)(vii)
315(e) . . . . . . . . . . . . . . . . . . . . 6.14
316(a) . . . . . . . . . . . . . . . . . . . . 8.04
316(a)(1). . . . . . . . . . . . . . . . . . . 6.12 and 6.13
316(a)(2). . . . . . . . . . . . . . . . . . . Omitted
316(b) . . . . . . . . . . . . . . . . . . . . 6.08
316(c) . . . . . . . . . . . . . . . . . . . . 8.06
317(a) . . . . . . . . . . . . . . . . . . . . 6.03 and 6.04
317(b) . . . . . . . . . . . . . . . . . . . . 4.03(a)
318(a) . . . . . . . . . . . . . . . . . . . . 15.07
____________________
*This Cross-Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited, Issuable in Series. . . . . . . . . 9
SECTION 2.02. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03. Form of Securities Generally;
Establishment of Series.. . . . . . . . . . . . . . . 10
SECTION 2.04. Securities in Global Form.. . . . . . . . . . . . . . 14
SECTION 2.05. Denominations; Record Date; Payment of
Interest. . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.06. Execution, Authentication, Delivery and
Dating of Securities. . . . . . . . . . . . . . . . . 16
SECTION 2.07. Exchange and Registration of Transfer of
Securities. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.08. Temporary Securities. . . . . . . . . . . . . . . . . 23
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Securities and Coupons. . . . . . . . . . . . . . . . 26
SECTION 2.10. Cancellation. . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.11. Book-Entry Only System. . . . . . . . . . . . . . . . 28
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability
of Section. . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.02. Notice of Redemption; Selection of
Securities. . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.03. Payment of Securities Called for
Redemption. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.04. Redemption Suspended During Event of
Default.. . . . . . . . . . . . . . . . . . . . . . . 32
_____________________
*The Table of Contents is not part of the Indenture.
i
<PAGE>
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.02. Offices For Notices and Payments, etc.. . . . . . . . 32
SECTION 4.03. Provisions as to Paying Agent.. . . . . . . . . . . . 34
SECTION 4.04. Statement as to Compliance. . . . . . . . . . . . . . 36
SECTION 4.05. Corporate Existence.. . . . . . . . . . . . . . . . . 36
SECTION 4.06. Waiver of Covenants.. . . . . . . . . . . . . . . . . 36
SECTION 4.07. Notice of Default.. . . . . . . . . . . . . . . . . . 37
SECTION 4.08. Determination of Additional Amounts.. . . . . . . . . 37
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists. . . . . . . . . . . . . . . . . 38
SECTION 5.02. Preservation and Disclosure of Lists. . . . . . . . . 38
SECTION 5.03. Reports by the Company. . . . . . . . . . . . . . . . 40
SECTION 5.04. Reports by the Trustee. . . . . . . . . . . . . . . . 40
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.. . . . . . . . . . . . . . . . . . 42
SECTION 6.02. Acceleration of Maturity, Rescission and
Annulment.. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . 44
SECTION 6.04. Trustee May File Proofs of Claim. . . . . . . . . . . 45
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities or Coupons.. . . . . . . . . 46
SECTION 6.06. Application of Money Collected. . . . . . . . . . . . 47
SECTION 6.07. Limitation on Suits.. . . . . . . . . . . . . . . . . 47
SECTION 6.08. Unconditional Right of Securityholders
to Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.09. Restoration of Rights and Remedies. . . . . . . . . . 48
SECTION 6.10. Rights and Remedies Cumulative. . . . . . . . . . . . 48
SECTION 6.11. Delay or Omission Not Waiver. . . . . . . . . . . . . 49
SECTION 6.12. Control by Securityholders. . . . . . . . . . . . . . 49
SECTION 6.13. Waiver of Past Defaults.. . . . . . . . . . . . . . . 50
SECTION 6.14. Undertaking for Costs.. . . . . . . . . . . . . . . . 50
SECTION 6.15. Waiver of Stay or Extension Laws. . . . . . . . . . . 51
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee. . . . . . . . 51
ii
<PAGE>
SECTION 7.02. Reliance on Documents, Opinions, etc. . . . . . . . . 52
SECTION 7.03. No Responsibility for Recitals, etc.. . . . . . . . . 53
SECTION 7.04. Ownership of Securities.. . . . . . . . . . . . . . . 53
SECTION 7.05. Moneys to be Held in Trust. . . . . . . . . . . . . . 54
SECTION 7.06. Compensation and Expenses of Trustee. . . . . . . . . 54
SECTION 7.07. Officers' Certificate as Evidence.. . . . . . . . . . 55
SECTION 7.08. Disqualification; Conflicting Interest
of Trustee. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.09. Eligibility of Trustee. . . . . . . . . . . . . . . . 63
SECTION 7.10. Resignation or Removal of Trustee.. . . . . . . . . . 63
SECTION 7.11. Acceptance by Successor Trustee.. . . . . . . . . . . 64
SECTION 7.12. Successor by Merger, etc. . . . . . . . . . . . . . . 65
SECTION 7.13. Limitations on Rights of Trustee as
Creditor. . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.14. Notice of Default.. . . . . . . . . . . . . . . . . . 70
SECTION 7.15. Appointment of Authenticating Agent.. . . . . . . . . 71
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.. . . . . . . . . . . . . . 73
SECTION 8.02. Proof of Execution by Securityholders.. . . . . . . . 73
SECTION 8.03. Who Are Deemed Absolute Owners. . . . . . . . . . . . 74
SECTION 8.04. Company-Owned Securities Disregarded. . . . . . . . . 75
SECTION 8.05. Revocation Of Consents; Future
Securityholders Bound.. . . . . . . . . . . . . . . . 75
SECTION 8.06. Record Date.. . . . . . . . . . . . . . . . . . . . . 76
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meeting.. . . . . . . . . . . . . . . . . 76
SECTION 9.02. Call of Meeting by Trustee. . . . . . . . . . . . . . 77
SECTION 9.03. Call of Meetings by Company or
Securityholders.. . . . . . . . . . . . . . . . . . . 77
SECTION 9.04. Qualifications for Voting.. . . . . . . . . . . . . . 77
SECTION 9.05. Regulations.. . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.06. Voting. . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.02. Supplemental Indentures with Consent of
Holders.. . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 10.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.. . . . . . . . . . 82
SECTION 10.04. Notation on Securities. . . . . . . . . . . . . . . . 82
iii
<PAGE>
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on
Certain Terms.. . . . . . . . . . . . . . . . . . . . 82
SECTION 11.02. Successor Corporation Substituted.. . . . . . . . . . 83
SECTION 11.03. Opinion of Counsel to be Given Trustee. . . . . . . . 83
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture; Certificate of
Satisfaction. . . . . . . . . . . . . . . . . . . . . 84
SECTION 12.02. Deposited Moneys to be Held in Trust by
Trustee.. . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 12.03. Paying Agent to Repay Moneys Held.. . . . . . . . . . 85
SECTION 12.04. Return of Unclaimed Moneys. . . . . . . . . . . . . . 85
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely
Corporate Obligations.. . . . . . . . . . . . . . . . 86
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article. . . . . . . . . . . . . . . 86
SECTION 14.02. Defeasance and Discharge. . . . . . . . . . . . . . . 86
SECTION 14.03. Covenant Defeasance.. . . . . . . . . . . . . . . . . 87
SECTION 14.04. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . . 87
SECTION 14.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . . . . . . . 89
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to
Parties and Securityholders.. . . . . . . . . . . . . 90
SECTION 15.02. Provisions Binding on Company's
Successors. . . . . . . . . . . . . . . . . . . . . . 91
SECTION 15.03. Notices, etc., to Company and Trustee.. . . . . . . . 91
SECTION 15.04. Notice to Holders of Securities; Waiver . . . . . . . 91
SECTION 15.05. Evidence of Compliance with Conditions
Precedent.. . . . . . . . . . . . . . . . . . . . . . 92
SECTION 15.06. Legal Holidays. . . . . . . . . . . . . . . . . . . . 93
iv
<PAGE>
SECTION 15.07. Trust Indenture Act to Control. . . . . . . . . . . . 93
SECTION 15.08. Execution in Counterparts.. . . . . . . . . . . . . . 93
SECTION 15.09. Governing Law. . . . . . . . . . . . . . . . . . . . 93
SECTION 15.10. Separability Clause.. . . . . . . . . . . . . . . . . 93
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . 94
SECTION 16.02. Payment Over of Proceeds Upon
Dissolution, etc. . . . . . . . . . . . . . . . . . . 94
SECTION 16.03. Trustee to Effectuate Subordination.. . . . . . . . . 97
SECTION 16.04. Trustee Not Charged with Knowledge of
Prohibition.. . . . . . . . . . . . . . . . . . . . . 97
SECTION 16.05. Rights of Trustee as Holder of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . 98
SECTION 16.06. Trustee Not Fiduciary for Holders of
Senior Indebtedness.. . . . . . . . . . . . . . . . . 98
SECTION 16.07. Article Applicable to Paying Agents.. . . . . . . . . 98
v
<PAGE>
THIS INDENTURE, dated as of January 1, 1995 between
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina
(hereinafter sometimes called the "Company"), and THE BANK OF NEW
YORK, a New York banking corporation (hereinafter sometimes
called the "Trustee," which term shall include any successor
trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time
to time for its lawful purposes securities (hereinafter called
the "Securities") evidencing its unsecured indebtedness and has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of the Securities in one or more series,
unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times and to have such other provisions
as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things
necessary to constitute these presents a valid indenture and
agreement according to its terms have been done and performed,
and the execution of this Indenture has in all respects been duly
authorized, and the Company, in the exercise of legal right and
power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued and received, and in
consideration of the premises, of the purchase and acceptance of
the Securities by the holders thereof and of the sum of one
dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time
of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section (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. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939 or that are by
reference therein defined in the Securities Act shall have the
meanings (except as herein otherwise expressly provided or unless
the context otherwise requires) assigned to such terms in said
Trust Indenture Act of 1939 and in said Securities Act as in
force at the date of this Indenture as originally executed. All
accounting terms used herein
<PAGE>
and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and
the term "generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well
as the singular.
Additional Amounts:
The term "Additional Amounts" shall mean any additional
amounts to be paid by the Company in respect of Securities of a
series, as may be specified pursuant to Section 2.03(b) hereof
and in such Security and under the circumstances specified
therein, in respect of certain specified taxes, assessments or
other governmental charges imposed on certain holders who are
United States Aliens, which may be owing to such holders as set
forth in Section 4.08 hereof.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper
(which, in the case of the United Kingdom, will, if practicable,
be the Financial Times (London Edition) and, in the case of
Luxembourg, will, if practicable, be the Luxemburger Wort) of
general circulation in the place of publication, published in an
official language of the country of publication and customarily
published at least once a day for at least five days in each
calendar week. Whenever successive weekly publications in an
Authorized Newspaper are authorized or required hereunder, they
may be made (unless otherwise provided herein) on the same or
different days of the week and in the same or different
Authorized Newspapers. If it shall be impractical in the opinion
of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such
notice.
Bearer Security:
The term "Bearer Security" shall mean any Security
established pursuant to Section 2.01 and Section 2.03(b) hereof
which is payable to bearer (including without limitation any
Security in temporary or permanent global bearer form) and title
to which passes by delivery only, but does not include any
coupons.
2
<PAGE>
Board of Directors:
The term "Board of Directors" or "Board" shall mean the
Board of Directors of the Company or any duly authorized
committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors or by
a committee acting under authority of or appointment by the Board
of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
Business Day:
The term "business day" shall mean, unless otherwise
specified pursuant to Section 2.03(b), with respect to any Place
of Payment or any other particular location referred to in this
Indenture or in the Securities, a day that in the city (or in any
one of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day
on which banking institutions are authorized or required by law
or regulation to close.
Capital Stock:
The term "Capital Stock" shall mean, as to shares of a
particular corporation, outstanding shares of stock of any class,
whether now or hereafter authorized, irrespective of whether such
class shall be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends and
in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
CEDEL, S.A.:
The term "CEDEL, S.A." shall mean Centrale de Livraison de
Valeurs Mobilieres, S.A., or any successor thereof.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission.
Common Depositary:
The term "Common Depositary" shall have the meaning set
forth in Section 2.08 hereof.
3
<PAGE>
Company:
The term "Company" shall mean NationsBank Corporation until
a successor corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor corporation.
Company Request, Company Order and Company Consent:
The terms "Company Request," "Company Order" and "Company
Consent" shall mean, respectively, a written request, order or
consent signed in the name of the Company by the Chairman of the
Board, President, Chief Financial Officer, any Vice President,
the General Counsel or any Associate General Counsel (or any
attorney holding a position equivalent thereto) of the Company
and by the Treasurer, any Assistant Treasurer, Secretary or any
Assistant Secretary of the Company, and delivered to the Trustee.
Coupon:
The term "coupon" shall mean any interest coupon
appertaining to a Bearer Security.
Default:
The term "Default" or "default" shall have the meaning
specified in Article Six.
Dollar or $:
The term "Dollar" or "$" shall mean a dollar or other
equivalent unit in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of
public and private debts.
Euroclear:
The term "Euroclear" shall mean Morgan Guaranty Trust
Company of New York, Brussels office, or any successor thereof,
as the operator of the Euroclear System.
Euro Security:
The term "Euro Security" shall mean any Bearer Security, any
Security initially represented by a Security in temporary global
form exchangeable for Bearer Securities and any Security in
permanent global form exchangeable for Bearer Securities.
Event of Default:
The term "Event of Default" shall have the meaning specified
in Article Six.
4
<PAGE>
Exchange Act:
The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
Exchange Date:
The term "Exchange Date" shall have the meaning set forth in
Section 2.08 hereof.
Holder:
The terms "holder," "holder of securities," "securityholder"
or other similar term shall mean (a) in the case of any
Registered Security, the person in whose name such Security is
registered in the Security Register kept by the Company for that
purpose, in accordance with the terms hereof, and (b) in the case
of any Bearer Security, the bearer thereof, and as used with
respect to any coupon appertaining to any Bearer Security, the
term "holder" shall mean the bearer thereof.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed and delivered or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof,
and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman of the Board, President, Chief Financial
Officer, any Vice President, the General Counsel or any Associate
General Counsel (or any attorney holding a position equivalent
thereto) of the Company and by the Treasurer, any Assistant
Treasurer, Secretary or any Assistant Secretary of the Company,
and delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing signed by legal counsel, who may be an employee of or
counsel to the Company, or who may be other counsel satisfactory
to the Trustee.
Original Issue Discount Securities:
The term "Original Issue Discount Securities" shall mean any
Securities which are initially sold at a discount from the
principal amount thereof and which provide upon an Event of
Default for declaration of an amount less than the principal
amount thereof to be due and payable upon acceleration thereof.
5
<PAGE>
Outstanding:
The term "Outstanding," when used with reference to
Securities, shall, subject to the provisions of Section 7.08,
Section 8.01 and Section 8.04, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under
this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set
aside and segregated and held in trust by the Company (if
the Company shall act as its own paying agent) for the
holders of such Securities and any coupons appertaining
thereto; provided, however, that if such Securities, or
portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as
provided in Article Three, or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Securities that have been defeased pursuant to Section
14.02 hereof; and
(d) Securities that have been paid pursuant to this
Indenture, or Securities in exchange for, in lieu of and in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07, unless proof satisfactory to the Trustee is presented
that any such Securities are held by bona fide holders in
due course.
Periodic Offering:
The term "Periodic Offering" shall mean an offering of
Securities of a series, from time to time, the specific terms of
which (including, without limitation, the rate or rates of
interest or formula for determining the rate or rates of interest
thereon, if any, the maturity dates or dates thereof and the
redemption provisions, if any, with respect thereto) are to be
determined by the Company upon the issuance of such Securities.
Person:
The term "person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
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Place of Payment:
The term "Place of Payment," when used with respect to the
Securities of any series, means the place or places where,
subject to the provisions of Section 4.02, the principal of (and
premium, if any, on) and any interest on the Securities of that
series are payable as specified pursuant to Section 2.03(b).
Possessions:
The term "possessions," when used with respect to the United
States, shall include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and Northern Mariana Islands.
Record Date:
The term "record date" as used with respect to any interest
payment date shall have the meaning specified in Section 2.05.
Registered Security:
The term "Registered Security" shall mean any Security
established pursuant to Section 2.01 and Section 2.03(b) which is
registered on the Security Register of the Company.
Responsible Officer:
"Responsible Officer," when used with respect to the
Trustee, shall mean any officer within the principal corporate
trust office of the Trustee (or any successor group of the
Trustee), including any Vice President, Assistant Vice President,
Assistant Secretary or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also shall mean, with
respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Securities:
The term "Securities" shall have the meaning set forth in
the preamble of this Indenture.
Securities Act:
The term "Securities Act" shall mean the Securities Act of
1933, as amended.
Security Register and Security Registrar:
The terms "Security Register" and "Security Registrar" shall
have the respective meanings set forth in Section 2.07(a) hereof.
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Senior Indebtedness:
The term "Senior Indebtedness" shall mean any indebtedness
for money borrowed outstanding on the date of execution of this
Indenture as originally executed, or thereafter created, incurred
or assumed, for the payment of which the Company is at the time
of determination responsible or liable as obligor, guarantor or
otherwise, and all deferrals, renewals, extensions and refundings
of any such indebtedness or obligations, other than the
Securities or any other indebtedness as to which, in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness is
subordinate in right of payment to any other indebtedness of the
Company, it being understood that the description of Senior
Indebtedness set forth herein shall be deemed to include all
indebtedness of the Company for borrowed and purchased money of
the Company, all obligations of the Company arising from off-
balance sheet guarantees by the Company and direct credit
substitutes and obligations of the Company associated with
derivative products such as interest and foreign exchange rate
contracts and commodity contracts.
Trust Indenture Act of 1939:
Except as otherwise provided in Section 7.08(c) and Article
Ten, the term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939, as amended, as in force at the date of
this Indenture as originally executed.
Trustee:
The term "Trustee" shall mean the person identified as
"Trustee" in the first paragraph hereof until the acceptance of
appointment of a successor trustee pursuant to the provisions of
Article Seven, and thereafter shall mean such successor trustee.
United States Alien:
The term "United States Alien" shall mean any person who,
for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign
partnership to the extent that one or more of its members is, for
United States Federal income tax purposes, a foreign corporation,
a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
U.S. Depositary:
The term "U.S. Depositary" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part
in the form of one or more permanent global Securities, the
person designated as U.S. Depositary by the Company pursuant to Section
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2.03(b), which must be a clearing agency registered under
the Exchange Act, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "U.S. Depositary" shall mean or include
each person who is then a U.S. Depositary hereunder, and if at
any time there is more than one such person, "U.S. Depositary" as
used with respect to the Securities of any series shall mean the
U.S. Depositary with respect to the Securities of such series.
Vice President:
The term "Vice President" when used with respect to the
Company or the Trustee shall mean any vice president, whether or
not designated by a number or word or words added before or after
the title "vice president," including any Executive or Senior
Vice President.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited, Issuable in Series.
Upon the execution of this Indenture, or from time to time
thereafter, Securities containing the terms and conditions and in
the amounts from time to time authorized by or pursuant to a
Board Resolution or in an indenture supplemental hereto, as set
forth in Section 2.03, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and make available for delivery said
Securities to or upon Company Order, without any further action
by the Company but subject to the provisions of Section 2.03.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully
be taken or if the Trustee in good faith by a committee of
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing holders of
Securities.
The Securities may be issued in one or more series. The
aggregate principal amount of Securities that may be
authenticated and delivered and outstanding under this Indenture
is not limited. The Securities of a particular series may be
issued up to the aggregate principal amount of Securities for
such series from time to time authorized by or pursuant to a
Board Resolution or in an indenture supplemental hereto, as set
forth in Section 2.03.
SECTION 2.02. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
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[Form of Trustee's Certificate of Authentication]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:............................................
THE BANK OF NEW YORK,
as Trustee,
By ___________________________
Authorized Signatory
SECTION 2.03. Form of Securities Generally; Establishment
of Series.
(a) The Registered Securities, if any, of each series, the
Bearer Securities, if any, of each series and related
coupons, if any, the temporary global Securities of each
series, if any, and the permanent global Securities of each
series, if any, shall be in the forms established from time
to time in or pursuant to one or more Board Resolutions
(and, to the extent established pursuant to rather than set
forth in one or more Board Resolutions, in an Officers'
Certificate (to which shall be attached true and correct
copies of the relevant Board Resolution(s)) detailing such
establishment) or established in an indenture supplemental
hereto.
The Securities may be issued in typewritten, printed or
engraved form with such letters, numbers or other marks of
identification or designation (including "CUSIP" numbers, if
then generally in use) and such legends or endorsements
printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to
conform to usage. Unless otherwise specified as
contemplated hereinafter, Securities in bearer form shall
have interest coupons attached.
(b) At or prior to the initial issuance of Securities of
any series, the particular terms of Securities of such
series shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to
rather than set forth in one or more Board Resolutions, in
an Officers' Certificate (to which shall be attached true
and correct copies of the relevant Board Resolutions(s))
detailing such establishment) or established in an indenture
supplemental hereto, including the following:
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(1) the designation of the particular series (which
shall distinguish such series from all other series);
(2) the aggregate principal amount of such series
which may be authenticated and delivered under this
Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the
series pursuant to this Indenture and except for any
Securities which, pursuant to Section 2.06, are deemed
never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities
(with or without coupons) or both, whether any
Securities of the series are to be issuable initially
in temporary global form with or without coupons and,
if so, the name of the Common Depositary with respect
to any such temporary global Security, and whether any
Securities of the series are to be issuable in
permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than
in the manner provided in Section 2.06 and the name of
the Common Depositary or the U.S. Depositary with
respect to any such permanent global Security;
(4) the date as of which any Bearer Securities of such
series and any temporary Security in global form
representing Outstanding Securities of such series
shall be dated, if other than the date of original
issuance of the first Security of the series to be
issued;
(5) the person to whom any interest on any Registered
Security of the series shall be payable, if other than
the person in whose name that Security (or one or more
predecessor Securities) is registered at the close of
business on the regular record date for such interest,
the manner in which, or the person to whom, any
interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they
severally mature, the extent to which, or the manner in
which, any interest payable on a temporary global
Security on an interest payment date will be paid if
other than in the manner provided in Section 2.08 and
the extent to which, or the manner in which, any
interest payable on a permanent global Security on an
interest payment date will be paid;
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(6) the date or dates on which the principal of the
Securities of such series is payable;
(7) the rate or rates, and if applicable the method
used to determine the rate, at which the Securities of
such series shall bear interest, if any, the date or
dates from which such interest shall accrue, the date
or dates on which such interest shall be payable and
the record date or dates for the interest payable on
any Registered Securities on any interest payment date;
(8) the place or places at which, subject to the
provisions of Sections 4.02 and 15.06, the principal of
(and premium, if any, on) and any interest on
Securities of such series shall be payable, any
Registered Securities of the series may be surrendered
for registration of transfer, Securities of the series
may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(9) the obligation, if any, of the Company to redeem
or purchase Securities of such series, at the option of
the Company or at the option of a holder thereof,
pursuant to any sinking fund or other redemption
provisions and the period or periods within which, the
price or prices at which and the terms and conditions
upon which Securities of the series may be so redeemed
or purchased, in whole or in part;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
any Registered Securities of such series shall be
issuable, and the denomination or denominations in
which any Bearer Securities of the series shall be
issuable, if other than the denomination of $5,000;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series which shall be payable upon declaration of
acceleration of the maturity thereof;
(12) the currency, currencies or currency units in
which payment of the principal of (and premium, if any,
on) and any interest on any Securities of the series
shall be payable if other than the currency of the
United States of America and the manner of determining
the equivalent thereof in the currency of the United
States of America for purposes of the definition of
"Outstanding" in Section 1.01;
(13) if the principal of (and premium, if any, on) or
any interest on the Securities of the series are to be
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payable, at the election of the Company or a holder
thereof, in one or more currencies or currency units,
other than that or those in which the Securities are
stated to be payable, the currency or currencies in
which payment of the principal of (and premium, if any,
on) and any interest on Securities of such series as to
which such election is made shall be payable, and the
periods within which and the terms and conditions upon
which such election is to be made;
(14) if the amount of payments of principal of (and
premium, if any, on) or any interest on the Securities
of the series may be determined with reference to an
index, the manner in which such amounts shall be
determined;
(15) whether the Securities will be issued in book-
entry only form;
(16) any interest rate calculation agents, exchange
rate calculation agents or other agents with respect to
Securities of such series;
(17) if either or both of Sections 14.02 and 14.03 do
not apply to the Securities of the series;
(18) whether and under what circumstances the Company
will pay Additional Amounts in respect of any series of
Securities and whether the Company has the option to
redeem such Securities rather than pay such Additional
Amounts;
(19) any provisions relating to the extension of
maturity of, or the renewal of, Securities of such
series, or the conversion of Securities of such series
into other securities of the Company; and
(20) any other terms of the Securities of such series
(which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series need not be issued at
the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided
by or pursuant to the Board Resolution or Officers'
Certificate referred to above or as set forth in an
indenture supplemental hereto, and, unless otherwise
provided, the authorized principal amount of any series may
be increased to provide for issuances of additional
Securities of such series. If so provided by or pursuant to
the Board Resolution or Officers' Certificate or
supplemental indenture referred to above, the terms of such
Securities to be issued from time to time may be determined
as set forth in such Board Resolution, Officers' Certificate
or supplemental indenture, as the case may be.
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All Securities of any one series shall be substantially
identical except as to denomination, interest rate, maturity
and other similar terms and except as may otherwise be
provided by or pursuant to such Board Resolution, Officers'
Certificate or supplemental indenture.
SECTION 2.04. Securities in Global Form.
If Securities of a series are issuable in global form, as
specified pursuant to Section 2.03(b), then, notwithstanding
clause (10) of Section 2.03(b) and the provisions of Section
2.05, any such Security in global form shall represent such of
the Securities of such series Outstanding as shall be specified
therein, and any such Security in global form may provide that it
shall represent the aggregate amount of Securities Outstanding
from time to time endorsed thereon and that the aggregate amount
of Securities Outstanding represented thereby may from time to
time be reduced to reflect any exchanges of beneficial interests
in such Security in global form for Securities of such series as
contemplated herein. Any endorsement of a Security in global
form to reflect the amount, or any decrease in the amount, of
Securities Outstanding represented thereby shall be made by the
Trustee or the Security Registrar in such manner and upon
instructions given by such person or persons as shall be
specified in such Security in global form or in the Company Order
to be delivered to the Trustee pursuant to Section 2.06 or
Section 2.08. Subject to the provisions of Section 2.06 and, if
applicable, Section 2.08, the Trustee or the Security Registrar
shall deliver and redeliver any Security in permanent global form
in the manner and upon instructions given by the person or
persons specified in such Security in global form or in the
applicable Company Order. If a Company Order pursuant to Section
2.06 or 2.08 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not be represented by a Company Order and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.06 shall
apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the
Company delivers to the Trustee or the Security Registrar the
Security in global form together with written instructions (which
need not be represented by a Company Order and need not be
accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 2.06.
Notwithstanding the provisions of Section 2.05, unless
otherwise specified as contemplated by Section 2.03(b), payment
of principal of and any premium and interest on any Security in
permanent global form shall be made to the persons or persons
specified therein.
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SECTION 2.05. Denominations; Record Date; Payment of
Interest.
(a) Unless otherwise provided as contemplated by Section
2.03(b) with respect to any series of Securities, any
Registered Securities of a series shall be issuable without
coupons in denominations of $1,000 and any integral multiple
of $1,000 and any Bearer Securities of a series shall be
issuable, with interest coupons attached, in the
denomination of $5,000.
(b) The term "record date" as used with respect to an
interest payment date for any series of Registered Security
shall mean such day or days as shall be specified as
contemplated by Section 2.03(b); provided, however, that in
the absence of any such provisions with respect to any
series, such term shall mean (1) the last day of the
calendar month next preceding such interest payment date if
such interest payment date is the fifteenth day of a
calendar month; or (2) the fifteenth day of a calendar month
next preceding such interest payment date if such interest
payment date is the first day of the calendar month.
Unless otherwise provided as contemplated by Section
2.03(b) with respect to any series of Securities, the person
in whose name any Registered Security is registered at the
close of business on the record date with respect to an
interest payment date shall be entitled to receive the
interest payable on such interest payment date
notwithstanding the cancellation of such Security upon any
registration of transfer or exchange thereof subsequent to
such record date and prior to such interest payment date;
provided, however, that if and to the extent the Company
shall default in the payment of the interest due on such
interest payment date, such defaulted interest shall be paid
to the persons in whose names the Securities are registered
on a subsequent record date established by notice given to
the extent and in the manner set forth in Section 15.04 by
or on behalf of the Company to the holders of Securities of
the series in default not less than 15 days preceding such
subsequent record date, such record date to be not less than
five days preceding the date of payment of such defaulted
interest, or in any other lawful manner acceptable to the
Trustee.
(c) Unless otherwise specified by Board Resolution or
Company Order for a particular series of the Securities, the
principal of, redemption premium, if any, on and interest,
if any, on the Securities of any series shall be payable at
the office or agency of the Company maintained pursuant to
Section 4.02 in a Place of Payment for such series, in New
York Clearing House funds; provided, however, that, at the
option of the Company, payment of interest with respect to a
Registered Security may be paid by check mailed to the
holders of the Registered
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Securities entitled thereto at their last addresses as they
appear on the Security Register.
SECTION 2.06. Execution, Authentication, Delivery and
Dating of Securities.
The Securities shall be signed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents under its corporate seal and attested by its Secretary
or one of its Assistant Secretaries. Such signatures may be the
manual or facsimile signatures of the current or any future such
officers. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Coupons shall bear the
facsimile signature of the Secretary or one of the Assistant
Secretaries of the Company or such other officer of the Company
as may be specified pursuant to Section 2.03(b). Any Security or
coupon may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Security, shall be
the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such officer.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were, at the actual date of the execution of
such Security or coupon, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities, or the delivery of such coupons,
as the case may be, or did not hold such offices at the date of
such Securities.
Upon the execution and delivery of this Indenture, the
Company shall deliver to the Trustee an Officers' Certificate as
to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and coupons and give
instructions under this Section and, as long as Securities are
Outstanding under this Indenture, shall deliver a similar
Officers' Certificate each year on the anniversary of the date of
the first such Officers' Certificate. The Trustee may
conclusively rely on the documents delivered pursuant to this
Section (unless revoked by superseding comparable documents) and
Section 2.03 hereof as to the authorization of the Board of
Directors of any Securities delivered hereunder, and the form and
terms thereof, and as to the authority of the instructing
officers referred to in this Section so to act.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in an unlimited
aggregate principal amount upon receipt by the Trustee of a
Company Order; provided, however, that with respect to Securities
of a series subject to a Periodic Offering, (a) such Company
Order may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery,
(b) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount, if
any, established
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for such series, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the maturity
date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be
determined by Company Order or pursuant to such procedures, and
(d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing; and provided further, however, that
definitive Euro Securities may only be delivered at an office or
agency outside the United States and its possessions in exchange
for a portion of a Euro Security in temporary global form of
equal aggregate principal amount and series and only if (x) prior
to such delivery, the owner of such Euro Security or a financial
institution or clearing organization through which the owner
holds such Euro Security, directly or indirectly, shall have
furnished a certificate in the form set forth in Exhibit A.1 to
this Indenture, dated no earlier than 15 days prior to the date
on which Euroclear or CEDEL S.A., as the case may be, furnishes
to the Common Depositary, in accordance with the procedures
established in Section 2.08, a certificate in the form set forth
in Exhibit A.2 to this Indenture that relates to all or such
portion of such temporary global Security, and (y) the person to
whom such certificate is provided does not know or have reason to
know that the information contained in such certificate is false.
If any Euro Security initially represented by a portion of a
temporary global Security is exchanged for a portion of a
permanent global Security in equal aggregate principal amount and
series, then, for purposes of this Section and Section 2.08, the
notation of a beneficial owner's interest therein upon exchange
shall be deemed to be delivery of definitive Euro Securities
representing such beneficial owner's interest. Except as
permitted by Section 2.09, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any new series and
any related coupons, and the authentication of such Security by
the Trustee, the Trustee shall have received and (subject to
Section 7.02) shall be fully protected in relying on:
(i) The Board Resolution or Officers' Certificate or
indenture supplemental hereto establishing the terms and the
form of the Securities of that series pursuant to Sections
2.01 and 2.03;
(ii) An Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the
authentication and delivery of Securities in such form have
been complied with;
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(iii) An Opinion of Counsel stating that: (1) the form and
terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution in
conformity with the provisions of this Indenture; (2)
Securities in such form, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture, and sold in the manner
specified in such Opinion of Counsel, will be valid and
legally binding obligations of the Company and enforceable
in accordance with their terms, subject to applicable
bankruptcy, reorganization, fraudulent conveyance,
insolvency, moratorium and other similar laws affecting the
rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C. (section mark)
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy; (3) all laws and
requirements in respect of the execution and delivery by the
Company of the Securities and coupons, if any, have been
complied with and that authentication and delivery of the
Securities by the Trustee will not violate the terms of the
Indenture; and (4) such other matters as the Trustee may
reasonably request; provided, however, that with respect to
Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication of Securities of such series and that the
opinions described in clauses (1) and (2) above may state,
respectively, (x) that when certain terms of such Securities
and coupons, if any, have been established pursuant to a
Board Resolution, Officers' Certificate or an indenture
supplemental hereto pursuant to Section 2.03(b) hereof, and
when such other terms as are to be established pursuant to
procedures set forth in a Company Order shall have been
established, all such terms will have been duly authorized
by the Company and will have been established in conformity
with the provisions of this Indenture; and (y) that
Securities in such Series, when (A) executed by the Company,
(B) completed, authenticated and delivered by the Trustee in
accordance with this Indenture, (C) issued and delivered by
the Company and (D) paid for, all as contemplated by and in
accordance with the Company Order or specified procedures,
as the case may be, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy,
reorganization, fraudulent conveyance, insolvency,
moratorium and other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement
of remedies and further subject to 12 U.S.C. (section mark) 1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy.
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With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and
of any coupons and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to this Section in connection with
the first authentication of Securities of such series unless and
until such Opinion of Counsel or other documents have been
superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the
Company.
Each Registered Security shall be dated the date of its
authentication except as otherwise provided by Board Resolution
or Officers' Certificate or indenture supplemental hereto; and
each Bearer Security shall be dated as of the date of original
issuance of the first Security of such series to be issued unless
otherwise specified pursuant to Section 2.03(b) hereof.
The aggregate principal amount of Securities of any series
outstanding at any time may not exceed any limit upon the maximum
principal amount for such series set forth in or pursuant to the
Board Resolution or Officers' Certificate or indenture
supplemental hereto delivered pursuant to Section 2.03, except as
provided in Section 2.09.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 2.09 together
with a written statement stating that such Security has never
been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration of Transfer of
Securities.
(a) The Company shall keep, at an office or agency to be
designated and maintained by the Company in accordance with
Section 4.02 (as such, a "Security Registrar"), registry books
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(the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company
shall register Registered Securities and shall register the
transfer of Registered Securities of each such series as
provided in this Article Two. Such Security Register shall
be in written form or in any other form capable of being
converted into written form within a reasonable time. At
all reasonable times such Security Register shall be open
for inspection by the Trustee. Upon due presentment for
registration of transfer of any Registered Security of a
particular series at such office or agency maintained
pursuant to Section 4.02 for such purpose in a Place of
Payment, the Company shall execute and register and the
Trustee shall authenticate and make available for delivery
in the name of the transferee or transferees a new
Registered Security or Registered Securities of such series
of any authorized denominations and for an equal aggregate
principal amount and tenor.
(b) At the option of the holder, Registered Securities of
any series may be exchanged for other Registered Securities
of the same series of any authorized denominations and of an
equal aggregate principal amount and tenor. Registered
Securities to be exchanged shall be surrendered at any such
office or agency maintained pursuant to Section 4.02 for
such purpose in a Place of Payment; and the Company shall
execute and register and the Trustee shall authenticate and
make available for delivery in exchange therefor the
Security or Securities that the securityholder making the
exchange shall be entitled to receive. Registered
Securities, including Registered Securities received in
exchange for Bearer Securities, may not be exchanged for
Bearer Securities unless the Company otherwise expressly
provides for the issuance, upon such terms and conditions as
may be provided with respect to such series, by the Company
of Registered Securities of a series that may be exchanged,
at the option of the securityholder upon such conditions and
limitations as may be specified by the Company, for Bearer
Securities of such series.
At the option of the holder, Bearer Securities of any
series may be exchanged for Registered Securities of the
same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons (except as provided
below) and with all matured coupons in default appertaining
thereto. If the holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds
acceptable to the Company 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 is furnished to them such
security or indemnity as
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they may require to save each of them and any paying agent
harmless. If thereafter the holder of such Securities 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 4.02, 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 and its
possessions. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of
the same series and like tenor after the close of business
at such office or agency on (i) any record date and before
the opening of business at such office or agency on the
relevant interest payment date, or (ii) any special record
date and before the opening of business at such office or
agency on the related proposed date for payment of defaulted
interest as set forth in Section 2.05, such Bearer Security
shall be surrendered without the coupon relating to such
interest payment date or proposed date for payment, as the
case may be, and interest or defaulted interest, as the case
may be, will not be payable on such interest payment date or
proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the holder of such
coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute and register, and the
Trustee shall authenticate and make available for delivery,
the Securities which the holder making the exchange is
entitled to receive.
(c) All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
All Registered Securities presented for registration of
transfer or for exchange, redemption or payment, as the case
may be, shall (if so required by the Company or the Trustee)
be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory
to the Company and the Trustee or the Security Registrar
duly executed by, the holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith, other than exchanges pursuant to the terms of
this Indenture not involving any transfer.
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The Company shall not be required (1) to issue, to
exchange or register the transfer of Securities of any
series to be redeemed for a period of 15 days next preceding
any selection of such Securities to be redeemed, or (2) to
exchange or register the transfer of any Registered Security
so selected, called or being called for redemption, except
in the case of any such series to be redeemed in part the
portion thereof not to be so redeemed, or (3) to exchange
any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered
Security of that series and of like tenor, provided that
such Registered Security shall be simultaneously surrendered
for redemption.
(d) Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 2.03(b), any permanent
global Security shall be exchangeable pursuant to this
Section only as provided in this paragraph. If the
beneficial owners of interests in a permanent global
Security are entitled to exchange such interests for
Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as
specified as contemplated by Section 2.03(b), then without
unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee or the Security
Registrar definitive Securities of that series in aggregate
principal amount equal to the principal amount of such
permanent global Security executed by the Company. On or
after the earliest date on which such interests may be so
exchanged, in accordance with instructions given by the
Company to the Trustee or the Security Registrar and the
Common Depositary or the U.S. Depositary, as the case may be
(which instructions shall be in writing), such permanent
global Security shall be surrendered from time to time by
the Common Depositary or the U.S. Depositary, as the case
may be, or such other depositary or Common Depositary or
U.S. Depositary, as the case may be, as shall be specified
in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, or to the Security
Registrar, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and
the Trustee shall authenticate and make available for
delivery in accordance with such instructions, in exchange
for each portion of such permanent global Security, a like
aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be
exchanged which (unless the Securities of the series are not
issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities
exchanged for the permanent global Security shall be
issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.03(b)),
shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be
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specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur for a period of 15
days next preceding any selection of Securities of that
series and of like tenor for redemption; and provided,
further, that no Bearer Security delivered in exchange for a
portion of a permanent global security shall be mailed or
otherwise delivered to any location in the United States or
its possessions. Promptly following any such exchange in
part, such permanent global Security should be returned by
the Trustee or the Security Registrar to the Common
Depositary or the U.S. Depositary, as the case may be, or
such other depositary or Common Depositary or U.S.
Depositary referred to above in accordance with the
instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of
a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any
record date and before the opening of business at such
office or agency on the relevant interest payment date, or
(ii) any special record date and before the opening of
business at such office or agency on the related proposed
date for payment of defaulted interest as provided in
Section 2.05, interest or defaulted interest, as the case
may be, will not be payable on such interest payment date or
proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such
interest payment date or proposed date for payment, as the
case may be, only to the person to whom interest in respect
of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
SECTION 2.08. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute and the Trustee shall, upon
Company Order, authenticate and make available for delivery,
temporary Securities of such series (typewritten, printed,
lithographed or otherwise produced). Such temporary Securities,
in any authorized denominations, shall be substantially in the
form of the definitive Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer form with
one or more or without coupons, in the form approved from time to
time by or pursuant to a Board Resolution or Company Order but
with such omissions, insertions, substitutions and other
variations as may be appropriate for temporary Securities, all as
may be determined by the Company, but not inconsistent with the
terms of this Indenture or any provision of applicable law. In
the case of any series issuable as Bearer Securities, such
temporary Securities shall be delivered only in compliance with
the conditions set forth in Section 2.06 and may be in global
form.
Except in the case of temporary Securities in global form
(which shall be exchanged as hereinafter provided), if temporary
Securities of any series are issued, the Company will cause
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definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series
at the office or agency of the Company maintained pursuant to
Section 4.02 in a Place of Payment for such series for the
purpose of exchanges of Securities of such series, without charge
to the holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of
authorized denominations; provided, however, that, except as
otherwise expressly provided by the Company as contemplated in
Section 2.07(b), no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided
further, however, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 2.06.
All Euro Securities shall be issued initially in the form of
a temporary global Security and any such temporary global
Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefits of Euroclear and CEDEL
S.A., for credit to the respective accounts for the beneficial
owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of,
any such temporary global Security of a series (the "Exchange
Date"), the Company shall deliver to the Trustee definitive
Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed
by the Company. On or after the Exchange Date such temporary
global Security shall be presented and surrendered by the Common
Depositary to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole
or from time to time in part, for definitive Securities of such
series without charge, and the Trustee shall authenticate and
make available for delivery, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary
global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global
Security must be accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account
then to be exchanged and a certificate dated the Exchange Date or
a subsequent date and signed by CEDEL S.A. as to
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the portion of such temporary global Security held for its account
then to be exchanged, each in the form set forth in Exhibit A.2 to this
Indenture. The definitive Securities to be delivered in exchange
for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 2.03(b), and, if any combination thereof
is so specified, as requested by the beneficial owner thereof;
provided, however, that definitive Securities shall be delivered
in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 2.06.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
definitive Securities of the same series and of like tenor upon
the receipt by Euroclear or CEDEL S.A., as the case may be, after
the Exchange Date of a certificate in the form set forth in
Exhibit A.1 to this Indenture (whether or not such certificate is
delivered in connection with the payment of interest, as
hereinafter provided) signed by the owner of the Security or a
financial institution or clearing organization through which the
owner directly or indirectly holds such Security, and dated no
earlier than 15 days prior to the date on which Euroclear or
CEDEL S.A., as the case may be, furnishes to the Common
Depositary in accordance with the preceding paragraph a
certificate in the form set forth in Exhibit A.2 to this
Indenture that relates to the interest to be exchanged for
definitive Securities. Copies of the certificate in the form set
forth in Exhibit A.1 to this Indenture shall be available from
the offices of Euroclear and CEDEL S.A., the Trustee, any
authenticating agent appointed for such series of Securities and
each paying agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary global Security,
except that a person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in
the event that such person does not take delivery of such
definitive Securities in person at the offices of Euroclear or
CEDEL S.A. Definitive Securities to be delivered in exchange for
any portion of a temporary global Security shall be delivered
only outside the United States and its possessions.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 2.03(b), interest payable on a temporary
global Security on any interest payment date for Securities of
such series occurring prior to the exchange of such temporary
global Security shall be payable to Euroclear and CEDEL S.A. on
such interest payment date upon delivery by Euroclear and CEDEL S.A.
to the Trustee or the applicable paying agent of a certificate or
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certificates in the form set forth in Exhibit A.3
to this Indenture, for credit without further interest on or
after such interest payment date to the respective accounts of
the persons for whom Euroclear or CEDEL S.A., as the case may be,
holds such temporary global Security on such interest payment
date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form set forth in Exhibit
A.1 to this Indenture. If such interest payment date occurs on
or after the Exchange Date, Euroclear or CEDEL S.A., as the case
may be, following the receipt of such certificate shall exchange,
in accordance with the procedures hereinabove provided, the
portion of the temporary global Security that relates to such
certificate for definitive Securities (which, in the absence of
instructions to the contrary, shall be an interest in a permanent
global Security). Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee or the applicable paying agent immediately upon the
expiration of two years after such interest payment date in order
to be repaid to the Company in accordance with Section 12.04.
The terms and form of the certificates to be delivered
hereunder, and procedures established with respect thereto, are
intended to ensure that (i) interest payable by the Company on
Securities of a series issuable in bearer form is deductible by
the Company under Section 163(f) of the Internal Revenue Code of
1986, as may be amended from time to time, or any successor
provision and (ii) the Company meets the requirements, if any,
established by Euroclear or CEDEL S.A. from time to time, and any
such certificates or the procedures with respect thereto may be
amended or modified by the Company upon delivery of a Company
Order to the Trustee accompanied by an Opinion of Counsel to the
effect that the proposed modification or amendment will effect
continued compliance by the Company with provisions of such Code
or Euroclear or CEDEL S.A., as the case may be.
Every temporary 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 Securities.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen
Securities and Coupons.
If any mutilated Security or a Security with a mutilated
coupon appertaining thereto is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the
same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the
surrendered Security.
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If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security or coupon; provided, however,
that principal of (and premium, if any, on) and any interest on
Bearer Securities shall, except as otherwise provided in Section
4.02, be payable only at an office or agency located outside the
United States and its possessions.
Upon the issuance of any new Security under this Section,
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or in exchange for a
Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security and any coupons appertaining thereto, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
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SECTION 2.10. Cancellation.
All Securities surrendered for payment, redemption, exchange
or registration of transfer or for credit against any sinking
fund payment, as the case may be, and any coupons surrendered for
payment, shall, if surrendered to the Company or any agent of the
Company or of the Trustee, be delivered to the Trustee. All
Registered Securities and matured coupons so delivered shall be
promptly cancelled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be held by the Trustee, and
upon instruction by a Company Order, shall be cancelled or held
for reissuance. All Bearer Securities and unmatured coupons held
by the Trustee pending such cancellation or reissuance shall be
deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may deliver to the
Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section except as expressly
provided by this Indenture. Any cancelled Securities and coupons
held by the Trustee shall be delivered to the Company or disposed
of as directed by the Company; provided, however, that the
Trustee may, but shall not be required to, destroy such
Securities.
SECTION 2.11. Book-Entry Only System.
If specified by the Company pursuant to Section 2.03(b) with
respect to Securities represented by a Security in global form, a
series of Securities may be issued initially in book-entry only
form and, if issued in such form, shall be represented by one or
more Securities in global form registered in the name of the U.S.
or Common Depositary or other depositary designated with respect
thereto. So long as such system of registration is in effect,
(a) Securities of such series so issued in book-entry only form
will not be issuable in the form of or exchangeable for
Securities in certificated or definitive registered form, (b) the
records of the U.S. or Common Depositary or such other depositary
will be determinative for all purposes and (c) neither the
Company, the Trustee nor any paying agent, Security Registrar or
transfer agent for such Securities will have any responsibility
or liability for (i) any aspect of the records relating to or
payments made on account of owners of beneficial interests in the
Securities of such series, (ii) maintaining, supervising or
reviewing any records relating to such beneficial interests,
(iii) receipt of notices, voting and requesting or directing the
Trustee to take, or not to take, or consenting to, certain
actions hereunder, or (iv) the records and procedures of the U.S.
or Common Depositary or such other depositary, as the case may
be.
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ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities; Applicability of
Section.
Redemption of Securities of any series as permitted or
required by the terms thereof shall be made in accordance with
the terms of such Securities as specified pursuant to Section
2.03(b) hereof and this Article; provided, however, that if any
provision of any series of Securities shall conflict with any
provision of this Section, the provision of such series of
Securities shall govern.
SECTION 3.02. Notice of Redemption; Selection of
Securities.
In case the Company shall desire to exercise the right to
redeem all or, as the case may be, any part of a series of
Securities pursuant to Section 3.01, it shall fix a date for
redemption. Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company, or, at
the Company's request, by the Trustee in the name and at the
expense of the Company. The Company or the Trustee, as the case
may be, shall give notice of such redemption, in the manner and
to the extent set forth in Section 15.04, at least 30 and not
more than 60 days prior to the date fixed for a redemption to the
holders of such Securities so to be redeemed as a whole or in
part. If the Company shall request the Trustee to give any
notice of redemption hereunder, it shall make such request at
least ten days prior to the designated date for delivering such
notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the date fixed
for redemption, the redemption price at which such Securities are
to be redeemed, the CUSIP numbers of such Securities, if any, the
Place of Payment where such Securities, together, in the case of
Bearer Securities, with all coupons appertaining thereto, if any,
maturing after the date of redemption, are to be surrendered for
payment of the redemption prices, that payment will be made upon
presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will
cease to accrue; provided, however, that the Trustee may state,
on any such notice of redemption, that no representation is made
as to the accuracy of any "CUSIP" number either as printed on any
certificates representing such Securities or as contained in such
notice and that holders of such Securities shall be entitled to
rely only on the other identification numbers printed on such
certificates, and any such redemption shall not be affected by
any defect in or omission of such numbers. If less than all of a
series is to be redeemed, the notice of redemption shall specify
the numbers of the
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Securities to be redeemed. In case any Security is to be redeemed
in part only, the notice of redemption shall state the portion of the
principal amount thereof to beredeemed and shall state that, upon
surrender of such Security, a new Security or Securities of the same
series in principal amount equal to the unredeemed portion thereof will
be issued.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will
deposit in trust with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption
date all the Securities or portions of Securities so called for
redemption at the appropriate redemption price, together with
accrued interest, if any, to the date fixed for redemption. If
less than all of a series of Securities is to be redeemed, the
Company will give the Trustee adequate written notice at least 45
days in advance (unless a shorter notice shall be satisfactory to
the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a series is to be
redeemed, the Trustee shall select, pro rata or by lot or in such
other manner as it shall deem appropriate and fair, not more than
60 days prior to the date of redemption, the numbers of such
Securities Outstanding not previously called for redemption, to
be redeemed in whole or in part. The portions of principal of
Securities so selected for partial redemption shall be equal to
the minimum authorized denomination for Securities of that series
or any integral multiple thereof. The Trustee shall promptly
notify the Company of the Securities to be redeemed. If,
however, less than all the Securities of a particular series
having differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion
shall select the particular Securities of such series to be
redeemed and shall notify the Trustee in writing thereof at least
45 days prior to the relevant redemption date.
SECTION 3.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided,
the Securities or portions of Securities with respect to which
such notice has been given shall become due and payable on the
date and at the place 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 Securities at the
redemption price, together with interest accrued to said date)
interest on such Securities or portions of Securities so called
for redemption shall cease to accrue and the coupons, if any, for
such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. On
presentation and surrender of such Securities subject to
redemption at the Place of Payment and in the manner specified in
such notice, together with
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all coupons, if any, appertaining
thereto and maturing after the date specified in such notice for
redemption, such Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption; provided, however, that installments
of interest on Bearer Securities whose stated maturity date is on
or prior to the date of redemption shall be payable only at an
office or agency located outside the United States and its
possessions (except as otherwise provided in Section 4.02) and,
unless otherwise specified as contemplated by Section 2.03(b),
only upon presentation and surrender of coupons for such
interest; and provided, further, that unless otherwise specified
as contemplated by Section 2.03(b), installments of interest on
Registered Securities whose stated maturity date is on or prior
to the date of redemption shall be payable to the holders of such
Securities, or one or more predecessor Securities, registered as
such at the close of business on the relevant record dates
according to their terms and the provisions of Section 2.05. At
the option of the Company, payment with respect to Registered
Securities may be made by check to the holders of such Registered
Securities or other persons entitled thereto against presentation
and surrender of such Securities.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the date
of redemption, such Security may be paid after deducting from the
redemption price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If
thereafter the holder of such Security shall surrender to the
Trustee or any paying agent any such missing coupon in respect of
which a deduction shall have been made from the redemption price,
such holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States and its possessions (except as otherwise provided in
Section 4.02) and, unless otherwise specified as contemplated by
Section 2.03(b), only upon presentation and surrender of those
coupons.
Any Security (including any coupons appertaining thereto)
that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder's attorney duly authorized
in writing), and upon such presentation, the Company shall
execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a
new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the
unredeemed portion of the principal of the Security so presented.
If a temporary global
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Security or permanent global Security is so
surrendered, such new Security so issued shall be a new temporary
global Security or permanent global Security, respectively.
SECTION 3.04. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all
Securities then Outstanding are to be redeemed) or commence the
giving of any notice or redemption of such Securities during the
continuance of any Event of Default known to the Trustee, except
that where the giving of notice of redemption of any Securities
shall theretofore have been made, the Trustee shall, subject to
the provisions of Section 16.04, redeem such Securities, provided
funds are deposited with it for such purpose. Subject to the
rights of the holders of Senior Indebtedness and except as
aforesaid, any moneys theretofore or thereafter received by the
Trustee shall, during the continuance of such Event of Default,
be held in trust for the benefit of the securityholders and
applied in the manner set forth in Section 6.06; provided,
however, that in case such Event of Default shall have been
waived as provided herein or otherwise cured, such moneys shall
thereafter be held and applied in accordance with the provisions
of this Article.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any, on) and any interest on
each of the Securities of a series at the place, at the
respective times and in the manner provided in the terms of the
Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 2.03(b)
with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on
or before maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
SECTION 4.02. Offices For Notices and Payments, etc.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment
for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City of New York (or in such other
place or places in the United States as
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the Company may designate from time to time by Company Order delivered
to the Trustee), an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the
circumstances described below (and not otherwise), (B) subject to
any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States and
its possessions, an office or agency where Securities of that
series and related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 4.08); provided,
however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the
Republic of Ireland, Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and
its possessions and such stock exchange shall so require, the
Company will maintain a paying agent for the Securities of that
series in London, Luxembourg or any other required city located
outside the United States and its possessions, as the case may
be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States and its possessions, an office or
agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served.
The Company will give to the Trustee notice of the location
of each such office or agency and of any change in the location
thereof. In case the Company shall fail to maintain any such
office or agency as required, or shall fail to give such notice
of the location or of any change in the location thereof,
presentations and surrenders of Securities of that series may be
made and notices and demands may be served at the principal
corporate trust office of the Trustee, except that Bearer
Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series
pursuant to Section 4.08) at any paying agent for such series
located outside the United States and its possessions or, if none
have been so appointed, then at the London office of the Trustee,
and the Company hereby appoints the same as its agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company
in the United States or its possessions or by check mailed to any
address in the United States or its possessions or by transfer to
any account maintained with a financial institution located in
the United States or its possessions; provided, however, that, if
the Securities of a series are denominated and payable in
Dollars, payment of principal of (and premium, if any) and any
interest on any Bearer Security (including any Additional Amounts
payable on Securities of such series pursuant to Section 4.08)
shall be made at the office of the Company's paying agent in the
Borough of Manhattan, The City of New York (or in such other
place or places in the United States as the Company may designate
from time to time by Company Order delivered to the Trustee), if
(but only if) payment in Dollars of the full amount of such
principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States and
its possessions maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee and the
holders of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby initially designates the principal
corporate trust office of The Bank of New York located at 101
Barclay Street, 21st Floor, New York, New York 10286 as the
office of the Company in the Borough of Manhattan, The City of
New York, where Registered Securities may be presented for
payment, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be
served.
SECTION 4.03. Provisions as to Paying Agent.
(a) Whenever the Company shall appoint a paying agent other than
the Trustee with respect to the Securities of any series, it will
cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(i) that it will hold sums held by it as such agent
for the payment of the principal of (and premium, if
any, on) or any interest on the Securities of such
series (whether such sums have been paid to it by the
Company or by any other obligor on the Securities of
such series) in trust
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for the benefit of the persons entitled thereto until such
sums shall be paid to such persons or otherwise disposed of
as herein provided and will notify the Trustee of the receipt
of sums to be so held,
(ii) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Securities of such series) to make any payment of the
principal of (or premium, if any, on) or any interest
on the Securities of such series when the same shall be
due and payable, and
(iii) that at any time when any such failure has
occurred and is continuing, it will, upon the written
request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) Whenever the Company shall have one or more paying
agents with respect to a series of Securities, it will, on
or prior to each due date of the principal of (and premium,
if any, on) or any interest on, any Securities of such
series, deposit with a paying agent a sum sufficient to pay
the principal (and premium, if any) or any interest so
becoming due, such sum to be held in trust for the benefit
of the persons entitled to such principal, premium or
interest. Unless such paying agent is the Trustee, the
Company will promptly notify the Trustee in writing of its
action or failure so to act.
(c) If the Company shall act as its own paying agent with
respect to a series of Securities, it will, on or before
each due date of the principal of (and premium, if any, on)
or any interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the persons
entitled thereto a sum sufficient to pay such principal (and
premium, if any) or any interest so becoming due until such
sums shall be paid to such persons or otherwise disposed of
as herein provided. The Company will promptly notify the
Trustee in writing of any failure to take such action.
(d) Anything in this Section to the contrary
notwithstanding, the Company may, at any time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause
to be paid, to the Trustee all sums held in trust for such
series by it or any paying agent hereunder as required by
this Section, such sums to be held by the Trustee upon the
trusts herein contained, and upon such payment by any paying
agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
(e) Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this
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Section is subject to the provisions of Sections 12.03 and 12.04.
SECTION 4.04. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, commencing with
the fiscal year ending in the year during which the first series
of Securities is issued hereunder (but in no event more than one
year from the issuance of the first series hereunder), a written
statement signed by the Chairman of the Board, President or other
principal executive officer of the Company and by the Treasurer
or other principal financial officer or principal accounting
officer of the Company, stating, as to each signer thereof, that
(a) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the
Company has fulfilled all its obligations under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and
status thereof.
SECTION 4.05. Corporate Existence.
Subject to the provisions of Article Eleven, the Company
will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises and the corporate
existence, rights (charter and statutory) and franchises of its
subsidiaries; provided, however, that the Company shall not be
required to, or to cause any subsidiary to, preserve any right or
franchise or to keep in full force and effect the corporate
existence of any subsidiary if the Company shall determine that
the keeping in existence or preservation thereof is no longer
desirable in or consistent with the conduct of the business of
the Company.
SECTION 4.06. Waiver of Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth herein if before or
after the time for such compliance the holders of a majority in
principal amount of the Securities of all series affected thereby
then Outstanding shall either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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SECTION 4.07. Notice of Default.
The Company shall file with the Trustee written notice of
the occurrence of any Event of Default or other Default within
five business days of its becoming aware of any such Default or
Event of Default.
SECTION 4.08. Determination of Additional Amounts.
If the Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the holder of any
Security of such series or any coupon appertaining thereto
Additional Amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for in this Section to
the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first interest
payment date with respect to that series of Securities (or, if
the Securities of that series will not bear interest prior to
maturity (including any maturity occurring by reason of a call of
redemption or otherwise), the first day on which a payment of
principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or 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 the Company's principal paying agent or
paying agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such paying agent or
paying agents whether such payment of principal of (and premium,
if any, on) or any interest on the Securities of that series
shall be made to holders of Securities of that series or any
related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such holders of Securities or
coupons and the Company will pay to the Trustee or such paying
agent the Additional Amounts required by this Section. 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
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taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists.
The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee with respect to Securities
of each series Outstanding, (1) semiannually, not later than
January 15 and July 15 in each year when any Securities of such
series are outstanding, a list, in such form as the Trustee may
reasonably require, of all information in the possession or
control of the Company as to the names and addresses of the
holders of such Registered Securities as of such date, and (2) at
such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list, in
such form as the Trustee may reasonably require, of all
information in the possession or control of the Company as to the
names and addresses of the holders of Registered Securities of a
particular series specified by the Trustee as of a date not more
than 15 days prior to the time such information is furnished;
provided, however, that if and so long as the Trustee shall be
the Security Registrar with respect to such series, such list
shall not be required to be furnished.
SECTION 5.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of each series of Securities contained
in the most recent list furnished to it as provided in Section
5.01 or received by the Trustee in its capacity as paying agent
or Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new
list so furnished.
(b) In case three or more holders of Securities of any
series (hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee reasonable
proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the
date of such application, and such application states that
the applicants desire to communicate with other holders of
Securities of a particular series (in which case the
applicants must hold Securities of such series) or with
holders of all Securities with respect to their rights under
this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the
receipt of such application, at its election, either
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(i) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of
this Section, or
(ii) inform such applicants as to the approximate
number of holders of Securities of such series or all
Securities, as the case may be, whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions
of subsection (a) of this Section, and as to the
approximate cost of mailing to such securityholders the
form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall,
upon the written request of such applicants, mail to each
securityholder of such series or all Securities, as the case
may be, whose name and address appear in the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, a copy of the
form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the
Trustee shall mail to such applicants, and file with the
Commission together with a copy of the material to be
mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Securities of such
series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met,
and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such securityholders
with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any
agent of the Company or of the Trustee shall be deemed to be in
violation of any law or shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of
Securities in accordance with the provisions of subsection
(b) of this
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Section, regardless of the source from which
such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).
SECTION 5.03. Reports by the Company.
The Company covenants so long as Securities are Outstanding:
(a) to file with the Trustee, within 15 days after the Company
is required to file the same with the 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
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such
rules and regulations; and
(c) to transmit by mail to all the holders of Registered
Securities of each series, in the manner and to the extent
provided in Section 5.04(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company
with respect to each such series pursuant to subsections (a)
and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) On or about July 15, 1995 and on or before July 15 of each
year thereafter, so long as any Securities are Outstanding
hereunder the Trustee shall transmit to the securityholders of
any series of Securities Outstanding hereunder, as provided in
subsection (c) of this Section, a brief report dated as of the
preceding May 15, with respect to any of the following events
that may have occurred in the
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previous 12 months (but if no such event has occurred within
such period no report need be transmitted):
(i) any change to its eligibility under Section 7.09,
and its qualification under Section 7.08;
(ii) the creation of or any material change to a
relationship specified in paragraphs (i) through (x) of
Section 7.08(c);
(iii) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more
than one-half of one percent of the principal amount of
the Securities Outstanding on the date of such report;
(iv) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with a
brief description of any property held as collateral
security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described
in paragraphs (ii), (iii), (iv), or (vi) of Section
7.13(b);
(v) any change to the property and funds, if any,
physically in the possession of the Trustee as such on
the date of such report;
(vi) any additional issue of Securities that it has not
previously reported; and
(vii) any action taken by the Trustee in the
performance of its duties under this Indenture that it
has not previously reported and that in its opinion
materially affects the Securities, except action in
respect of a default, notice of which has been or is to
be withheld by it in accordance with the provisions of
Section 7.14.
(b) The Trustee shall transmit to the holders of Securities
of any series, as provided in subsection (c) of this
Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection
(a) of
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this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture),
for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any series on
property or funds held or collected by it as Trustee, and
which it has not previously reported pursuant to this
subsection (b), except that the Trustee for each series
shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of
Securities for such series Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(i) to all holders of Registered Securities, as the
names and addresses of such holders appear in the
Security Register;
(ii) to such holders of Bearer Securities as have,
within the two years preceding such transmission, filed
their names and addresses with the Trustee for that
purpose; and
(iii) except in the case of reports pursuant to
subsection (b) of this Section, to all holders of
Securities whose names and addresses are at that time
preserved by the Trustee, as provided in 5.02(a).
(d) A copy of each such report shall, at the time of such
transmission to holders of Securities, be filed by the
Trustee with each stock exchange upon which the Securities
are listed and also with the Commission and the Company.
The Company agrees to promptly notify the Trustee when and
as the Securities become listed on any stock exchange.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.
The term "Event of Default," whenever used herein, means any
one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be
effected by operation of law pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company
under the Federal Bankruptcy laws, as now constituted
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or as hereafter amended, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
or
(b) the filing by the Company of a petition or answer or
consent seeking relief under the Federal Bankruptcy laws, as
now constituted
or hereafter amended, or the consent by it
to the institution of proceedings thereunder or to the
filing of any such petition.
SECTION 6.02. Acceleration of Maturity, Rescission and
Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the holders of not less than 25
percent in principal amount of the Securities Outstanding may
declare the principal (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of
the principal amount of such Securities as may be specified in
the terms thereof) of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by the securityholders), and upon any such
declaration such principal (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this
Article provided, the holders of a majority in principal amount
of the Securities Outstanding, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue installments of interest on all
Securities,
(ii) the principal of any Securities which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by such
Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest
at the rate borne by such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and
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(b) all Events of Default have been cured or waived as
provided in Section 6.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of any such a declaration of
acceleration, or rescission and annulment thereof, with respect
to Securities of a series all or part of which is represented by
a temporary global Security or a permanent global Security, the
Trustee shall establish a record date for determining holders of
Securities of such series Outstanding entitled to join in such
declaration of acceleration, or rescission and annulment, as the
case may be, which record date shall be at the close of business
on the day the Trustee receives such declaration of acceleration,
or rescission and annulment, as the case may be. The holders on
such record date, or their duly designated proxies, and only such
persons, shall be entitled to join in such declaration of
acceleration, or rescission and annulment, as the case may be,
whether or not such holders remain holders after such record
date, provided that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having been
obtained prior to the day which is 90 days after such record
date, such declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without
further action by any holder be cancelled and of no further
effect. Nothing in this paragraph shall prevent a holder, or a
proxy of a holder, from giving, after expiration of such 90-day
period, a new declaration of acceleration, or rescission or
annulment thereof, as the case may be, that is identical to a
declaration of acceleration, or rescission or annulment thereof,
which has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 6.02.
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days,
or
(b) default is made in the payment of the principal of any
Security at the maturity thereof, including any maturity
occurring by reason of a call for redemption or otherwise,
or
(c) the Company defaults in the performance, or breach, of
any of its other covenants or agreements in the Security or
in this Indenture and such default or breach continues for a
period of 90 days after the date on which written notice of
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such failure, requiring the Company to remedy the same and
stating that such notice is a "Notice of Default" hereunder,
shall have been given by registered mail to the Company by
the Trustee, or to the Company and the Trustee by the
holders of at least 25 percent in aggregate principal amount
of the Securities at the time Outstanding,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the holders of such Securities and any coupons
appertaining thereto, the whole amount that shall have become due
and payable on such Securities and coupons for principal and
interest, with interest upon the overdue principal, if any, and,
to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate
borne by such Securities; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceedings to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If a default as specified above (a "Default") occurs and is
continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the securityholders by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Notwithstanding any provision in this Section 6.03 to the
contrary, neither the Trustee nor the securityholders shall have
the right to accelerate payment of any Securities of any series
Outstanding or otherwise to declare such Securities immediately
due and payable, except as set forth in Section 6.02 above.
SECTION 6.04. Trustee May File Proofs of Claim.
In the case of the pendency of a receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
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otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal
(and premium, if any) and any interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the holders of Securities
and coupons allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any receiver, assignee, trustee, liquidator or sequestrator
(or other similar official) in any such judicial proceeding is
hereby authorized by each holder of Securities and coupons to
make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to
the holders of Securities and coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
7.06. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts
out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends,
moneys, securities and other property which the holders of the
Securities and coupons may be entitled to receive in such
proceedings, whether in liquidation or under any plan or
reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any holder of a Security or a coupon any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
holder of a Security or a coupon in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own
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name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal (and premium, if any) or any
interest, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.06;
SECOND: Subject to Article Sixteen, to the payment of
the amounts then due and unpaid for principal of and
premium, if any, and any interest on the Securities and
coupons, in respect of which or for the benefit of which
such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and
payable on such Securities and coupons, for principal and
premium, if any, and any interest, respectively; and
THIRD: To the Company or its successors or assigns, or
to whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits.
No holder of any Security of any series or any related
coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such holder has previously given written notice to the
Trustee of a continuing Default;
(b) the holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(c) such holder or holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceedings; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the
holders of a majority in principal amount of the Outstanding
Securities;
it being understood and intended that no one or more such holders
of Securities shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
holders of Securities or to obtain or to seek to obtain priority
or preference over any other of such holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such holders of
Securities.
SECTION 6.08. Unconditional Right of Securityholders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture but
subject to the provisions of Article Sixteen, the holder of any
Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and
premium, if any, on) and (subject to Sections 2.05 and 3.02) any
interest on such Security or payment of such coupon on the
respective stated maturities expressed in such Security or coupon
(or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the
Trustee or to such holder, then and in every such case the
Company, the Trustee and the holders of Securities and coupons
shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee
and the holders shall continue as though no such proceeding has
been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right or remedy
herein conferred upon or reserved to the Trustee or to the
holders of Securities or coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at
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law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder of any
Security or coupon to exercise any right or remedy accruing upon
any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the holders of Securities or coupons may be exercised from
time to time, and as often as may be deemed expedient, by the
Trustee or by the holders of Securities or coupons, as the case
may be.
SECTION 6.12. Control by Securityholders.
The holders of a majority in principal amount of Outstanding
Securities of all series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such
series, provided that
(a) such direction shall not be in conflict with any
statute or rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
and
(c) subject to the provisions of Section 7.01, the Trustee
need not take any action which it in good faith determines
might involve it in personal liability or be unjustly
prejudicial to the holders not consenting.
Upon receipt by the Trustee of any such direction with
respect to Securities of a series all or part of which is
represented by a temporary global Security or a permanent global
Security, the Trustee shall establish a record date for
determining holders of Outstanding Securities of such series
entitled to join in such direction, which record date shall be at
the close of business on the day the Trustee receives such
direction. The holders on such record date, or their duly
designated proxies, and only such persons, shall be entitled to
join in such direction, whether or not such holders remain
holders after such record date, provided that, unless such
majority in principal amount shall have been obtained prior to
the day which is 90 days after such record date, such direction
shall automatically and without further action by any holder be
cancelled and of no further effect. Nothing in this paragraph
shall prevent a holder, or a proxy of a holder, from giving,
after expiration of such 90-day period, a new direction identical
to a direction which has been cancelled pursuant to the
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proviso to the preceding sentence, in which event a new record date shall
be established pursuant to the provisions of this Section 6.12.
SECTION 6.13. Waiver of Past Defaults.
The holders of a majority in principal amount of the
Outstanding Securities of all series may, on behalf of the
holders of all the Securities and any coupons appertaining
thereto, waive any past default hereunder and its consequences,
except a default
(a) in the payment of the principal of (or premium, if any, on)
or any interest on any Security, or
(b) in respect of a covenant or provision hereof that
pursuant to Article Ten cannot be modified or amended
without the consent of the holder of each Outstanding
Security affected.
Upon any such waiver, such default shall cease to exist, and
any Default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture, but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each holder of any
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, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
holder, or group of holders, holding in the aggregate more than
ten percent in principal amount of the Outstanding Securities, or
to any suit instituted by any holder of any Securities or coupons
for the enforcement of the payment of the principal of (or
premium, if any, on) or any interest on any Security or the
payment of any coupon on or after the respective stated
maturities expressed in such Security or coupon (or, in the case
of redemption, on or after the redemption date except, in the
case of a partial redemption, with respect to the portion not so
redeemed).
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SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefits
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of a Default or an
Event of Default with respect to a particular series of
Securities and after the curing of all Defaults or Events of
Default with respect to such series which may have occurred,
undertakes to perform such duties and only such duties with
respect to such series as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee and 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 provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case a Default or an Event of Default with respect
to a particular series of Securities has occurred (which has
not been cured), the Trustee shall exercise with respect to
such series such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provisions of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that:
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(i) this Section 7.01(c) shall not be construed to
limit the effect of Section 7.01(a);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders
of Securities Outstanding pursuant to Section 6.12
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.
(d) No provision of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or
otherwise to 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 it shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, etc.
Subject to the provisions of 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,
consent, order, bond, debenture, note, coupon or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (unless other evidence in
respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or any Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel of its selection
and the written advice of such counsel and any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
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(d) 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
any Securities or any related coupons 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 might be
incurred therein or thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or documents, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally
or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder; and
(g) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities, other
than 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 Securities or coupons,
provided that the Trustee shall not be relieved of its duty to
authenticate Securities except as authorized by this Indenture.
The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 7.04. Ownership of Securities.
The Trustee, any authenticating agent, any paying agent, any
Security Registrar or any other agent of the Company or of the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons with the same rights,
subject to Section 7.08 and Section 7.13, it would have if it
were
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not Trustee, authenticating agent, paying agent, Security
Registrar or such other agent of the Company or of the Trustee.
SECTION 7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04 hereof, all
moneys received by the Trustee or any paying agent 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. Neither
the Trustee nor any paying agent shall be under any liability for
interest on any moneys received by it hereunder except such as it
may agree in writing with the Company to pay thereon.
SECTION 7.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such
compensation for all services rendered by it hereunder as the
Company and the Trustee shall from time to time agree in writing
(which to the extent permitted by law 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, the
Company will pay or reimburse the Trustee forthwith 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 compen-
sation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. If any property other than cash shall at any time be
subject to the lien of this Indenture, 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, but not
required, to make, and to be reimbursed for, advances for the
purpose of preserving such property or of discharging tax liens
or other prior liens or encumbrances thereon. The Company also
covenants to indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon, measured or
determined by, the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee, arising out
of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself
against any claim of liability. The obligations of the Company
under this Section shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in
trust for the benefit of the holders of particular Securities.
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When the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including the
reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses
of administration under any bankruptcy law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 7.07. Officers' Certificate as Evidence.
Subject to the provisions of 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 any action to be taken
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. Disqualification; Conflicting Interest of
Trustee.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90 days
after ascertaining that it has such conflicting interest, and if
the default as defined in subsection (c) of this Section to which
such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day
period, either eliminate such conflicting interest or, except as
otherwise provided below in this Section 7.08, resign in the
manner and with the effect specified in this Article Seven, and
the Company shall take prompt steps to have a successor appointed
in the manner provided herein.
(b) (i) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section,
the Trustee shall, within ten days after the expiration
of such 90-day period, transmit notice of such failure,
in the manner and to the extent set forth in Section
5.04(c), to all securityholders of the series affected
by the conflicting interest.
(ii) Subject to the provisions of Section 6.14, unless
the Trustee's duty to resign is stayed as provided
below in this Section, any securityholder who has been
a bona fide holder of Securities of any series affected
by the conflicting interest for at least six months
may, on behalf of himself and all others similarly
situated,
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petition any court of competent jurisdiction
for the removal of such Trustee, and the appointment of
a successor, if such Trustee fails, after written
request thereof by such holder to comply with the
provisions of subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to
Securities of a particular series if a default (under the
terms of this Indenture, but exclusive of any period of
grace or requirement of notice) has occurred with respect to
such Securities and
(i) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any other
series or is trustee under another indenture under
which any other securities, or certificates of interest
or participation in any other securities, of the
Company are outstanding, unless such other indenture is
a collateral trust indenture under which the only
collateral consists of Securities issued under this
Indenture; provided, however, that there shall be
excluded from the operation of this paragraph (A) this
Indenture with respect to Securities of any other
series, and (B) any other indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding if
i) this Indenture is, and, if applicable, such
other indenture or indentures are, wholly
unsecured and rank equally, and such other
indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, as in
effect at the time of such qualification, unless
the Commission shall have found and declared by
order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust
Indenture Act of 1939 that differences exist
between the provisions of this Indenture with
respect to such particular series and (A) one or
more other series in this Indenture or (B) the
provisions of such other indenture or indentures
which are so likely to involve a material conflict
of interest as to make it necessary in the public
interest or for the protection of investors to
disqualify the Trustee from acting as such under
this Indenture with respect to such particular
series and such other series or such other
indenture or indentures, or
ii) the Company shall have sustained the burden of
proving, on application to the Commission and
after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to such
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particular series and such other series or
under this Indenture and such other indenture or
indentures is not so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as
such under this Indenture with respect to such
particular series and such other series or under
this Indenture and such other indenture or
indentures;
(ii) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(iii) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct
or indirect common control with an underwriter for the
Company;
(iv) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee or representative of the Company, or of an
underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of
underwriting, except that (A) one individual may be a
director or an executive officer or both of the Trustee
and a director or an executive officer or both of the
Company, but may not be at the same time an executive
officer of both the Trustee and the Company; (B) if and
so long as the number of directors of the Trustee in
office is more than nine, one additional individual may
be a director or an executive officer or both of the
Trustee and a director of the Company; and (C) the
Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any
other similar capacity, or, subject to the provisions
of paragraph (i) of this subsection (c), to act as
trustee, whether under an indenture or otherwise;
(v) ten percent or more of the voting securities of
the Trustee is beneficially owned either by the Company
or by any director, partner or executive officer
thereof, or 20 percent or more of such voting
securities is beneficially owned, collectively, by any
two or more of such persons, or ten percent or more of
the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by
any director, partner or executive officer thereof, or
is beneficially owned, collectively, by any two or more
such persons;
(vi) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default
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as hereinafter described in this subsection (A)
five percent or more of the voting securities, or ten
percent or more of any other class of security, of the
Company, not including the Securities issued under this
Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or
(B) ten percent or more of any class of security of an
underwriter for the Company;
(vii) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default as hereinafter described in this subsection,
five percent or more of the voting securities of any
person who, to the knowledge of the Trustee, owns ten
percent or more of the voting securities of, or
controls directly or indirectly or is under direct or
indirect common control with, the Company;
(viii) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default as hereinafter described in this subsection,
ten percent or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50
percent or more of the voting securities of the
Company; or
(ix) the Trustee owns on the date of default of the
Securities of such series under this Indenture (but
exclusive of any period of grace or requirement of
notice) or any anniversary of such default while such
default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25 percent or
more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (vi), (vii) or
(viii) of this subsection (c). As to any such
securities of which the Trustee acquired ownership
through becoming executor, administrator or
testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not
apply for a period of not more than two years from the
date of such acquisition, to the extent that such
securities included in such estate do not exceed 25
percent of such voting securities or 25 percent of any
such class of security. Promptly after the dates of
any such default and annually in each succeeding year
that the Securities of any series hereunder remain in
default, the Trustee shall make a check of its holdings
of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to
make payment in full of principal of or interest on any
of the Securities when and as the same become due and
payable, and such failure
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continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this
paragraph (ix), all such securities so held by the
Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as
such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of
paragraphs (vi), (vii) and (viii) of this subsection
(c); or
(x) except under the circumstances described in
subsections (i), (iii), (iv), (v) or (vi) of
Section 7.13(b), the Trustee shall be or shall become a
creditor of the Company.
For purposes of paragraph (i) of this subsection (c) and
Sections 6.12 and 6.13, the term "series" means a series, class
or group of securities issuable under an indenture pursuant to
whose terms holders of one such series may vote to direct the
trustee, or otherwise take action pursuant to a vote of such
holders, separately from the holders of another such series;
provided, however, that "series" shall not include any series of
securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The specification of percentages in paragraphs (v) to (ix),
inclusive, of this subsection (c) shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
paragraph (iii) or (vii) of this subsection (c).
For the purposes of paragraphs (vi), (vii), (viii) and (ix)
of this subsection (c) only, (A) the terms "security" and
"securities" shall include only such securities as are generally
known as corporate securities, but shall not include any note or
other evidence of indebtedness issued to evidence an obligation
to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (B)
an obligation shall be deemed to be in default when a default in
payment of principal shall have continued for 30 days or more and
shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (x) any security which it
holds as collateral security (as trustee or otherwise) for an
obligation which is not in default as defined in clause (B)
above, or (y) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or
(iii) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar
representative capacity.
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(d) For the purposes of this Section:
(i) The term "underwriter" when used with reference
to the Company shall mean every person who, within one
year prior to the time as of which the determination is
made, has purchased from the Company with a view to, or
has offered or has sold for the Company in connection
with, the distribution of any security of the Company
outstanding at such time, or has participated or has
had a direct or indirect participation in any such
undertaking, or has participated or has had a
participation in the direct or indirect underwriting of
any such undertaking, but such term shall not include a
person whose interest was limited to a commission from
an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(ii) The term "director" shall mean any director of a
corporation or any individual performing similar
functions with respect to any organization whether
incorporated or unincorporated.
(iii) The term "person" shall mean an individual, a
corporation, a partnership, an association, a
joint-stock company, a trust, an unincorporated
organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are
evidenced by a security.
(iv) The term "voting security" shall mean any
security currently entitling the owner or holder
thereof to vote in the direction or management of the
affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner
or holder of such security currently are entitled to
vote in the direction or management of the affairs of a
person.
(v) The term "Company" shall mean any obligor upon
the Securities of any series.
(vi) The term "executive officer" shall mean the
president, every vice president, every trust officer,
the cashier, the secretary and the treasurer of a
corporation, and any individual customarily performing
similar functions with respect to any organization
whether incorporated or unincorporated but shall not
include the chairman of the board of directors.
(vii) The percentages of voting securities and other
securities specified in this Section shall be
calculated in accordance with the following provisions:
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i) A specified percentage of the voting
securities of the Trustee, the Company or any
other person referred to in this Section (each of
whom is referred to as a "person" in this
paragraph) means such amount of the outstanding
voting securities of such person as entitles the
holder or holders thereof to cast such specified
percentage of the aggregate votes which the
holders of all the outstanding voting securities
of such person are entitled to cast in the
direction or management of the affairs of such
person.
ii) A specified percentage of a class of
securities of a person means such percentage of
the aggregate amount of securities of the class
outstanding.
iii) The term "amount," when used in regard to
securities, means the principal amount if relating
to evidences of indebtedness, the number of shares
if relating to capital shares, and the number of
units if relating to any other kind of security.
iv) The term "outstanding" means issued and not
held by or for the account of the issuer. The
following securities shall not be deemed
outstanding within the meaning of this definition:
a) securities of an issuer held in a
sinking fund relating to securities of the
issuer of the same class;
b) securities of an issuer held in a sinking
fund relating to another class of securities
of the issuer, if the obligation evidenced by
such other class of securities is not in
default as to principal or interest or
otherwise;
c) securities pledged by the issuer thereof
as security for an obligation of the issuer
not in default as to principal or interest or
otherwise; and
d) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of
an issuer shall be deemed outstanding if any
person other than the issuer is entitled to
exercise the voting rights thereof.
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v) A security shall be deemed to be of the same
class as another security if both securities
confer upon the holder or holders thereof substantially
the same rights and privileges; provided,
however, that in the case of secured evidences of
indebtedness, all of which are issued under a
single indenture, differences in the interest
rates or maturity dates of various series thereof
shall not be deemed sufficient to constitute such
series different classes and provided, further,
that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed
sufficient to constitute them securities of
different classes, whether or not they are issued
under a single indenture.
(e) Except in the case of a default in the payment of the
principal of or interest on any Securities of any series or
any coupon issued hereunder, or in the payment of any
sinking or purchase fund installment, the Trustee shall not
be required to resign as provided by subsection (c) of this
Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that (i) such default may
be cured or waived during a reasonable period and under the
procedures described in such application, and (ii) a stay of
the Trustee's duty to resign will not be inconsistent with
the interests of the holders of the Securities of any such
series issued hereunder. The filing of such an application
shall automatically stay the performance of the duty to
resign until such Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon
the appointment of a successor trustee and such successor's
acceptance of such appointment as provided in this Article.
(f) If Section 310(b) of the Trust Indenture Act of 1939 is
amended at any time after the date of this Indenture to
change the circumstances under which a Trustee shall be
deemed to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions
in connection therewith, this Section 7.08 shall be
automatically amended to incorporate such changes, unless
such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Securities to be
deemed to have a conflicting interest, in which case such
changes shall be incorporated herein only to the extent that
such changes (i) would not cause the Trustee to be deemed to
have a conflicting interest, or (ii) are required by law.
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SECTION 7.09. Eligibility of Trustee.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to
exercise corporate trust powers, (b) is subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority, (c) shall have at all times a combined
capital and surplus of not less than $5,000,000 and (d) shall not
be the Company or any person directly or indirectly controlling,
controlled by, or under common control with the Company or any
such obligor. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series
by giving written notice of resignation to the Company. Upon
receiving such notice of resignation the Company shall promptly
appoint a successor trustee with respect to the applicable series
by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 7.08 with
respect to any series of Securities after written
request therefor by the Company or by any
securityholder who has been a bona fide holder of a
Security or Securities of such series for at least six
months, or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 with
respect to any
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series of Securities and shall fail to
resign after written request therefor by the Company or
by any such securityholder, or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee
with respect to the applicable series of Securities and
appoint a successor trustee with respect to such series by
written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which
instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the
provisions of Section 6.14, any securityholder of such
series who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount
of the Securities of all series (voting as one class) at the
time Outstanding may at any time remove the Trustee with
respect to Securities of all series and appoint a successor
trustee with respect to the Securities of all series.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the
provisions of this Section shall become effective upon the
appointment of a successor trustee and the acceptance of
appointment by the successor trustee as provided in Section
7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally
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named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then
due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all
the rights and powers of the trustee so ceasing to act. Upon
request of any such successor trustee, the Company shall execute
any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor trustee all
such rights and powers. Any trustee, including the initial
Trustee, ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure
any amounts then due it pursuant to the provisions of Section
7.06.
In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all)
series, the Company, the predecessor Trustee and each successor
trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities
of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture
shall constitute such trustees co-trustees of the same trust and
that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such trustee.
No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor
trustee shall be qualified and eligible under the provisions of
this Article Seven.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall mail notice of the
succession of such trustee hereunder to all holders of Securities
of any applicable series as the names and addresses of such
holders shall appear on the registry books. If the Company fails
to mail such notice in the prescribed manner within ten days
after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be so mailed at the
expense of the Company.
SECTION 7.12. Successor by Merger, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the
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Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified and eligible under the provisions of
this Article Seven, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
SECTION 7.13. Limitations on Rights of Trustee as Creditor.
(a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in subsection
(c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the
Trustee individually, the holders of the Securities and the
holders of other indenture securities (as defined in subsection
(c) of this Section):
(i) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as
against the Company and its other creditors, except any
such reduction resulting from the receipt or
disposition of any property described in paragraph (ii)
of this subsection or from the exercise of any right of
set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(ii) all property received by the Trustee in respect of
any claim as such creditor, either as security
therefor, or in satisfaction or composition thereof, or
otherwise, after the beginning of such three months'
period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of
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the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States
Code or applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such
property was so held prior to the beginning of such
three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such
three months' period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a
default as defined in subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claims referred to in
paragraph (B) or (C), against the release of any
property held as security for such claim as provided in
such paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D) above,
property substituted after the beginning of such three
months' period for property held as security at the time of
such substitution shall, to the extent of the fair value of
the property released, have the same status as the property
released, and, to the extent that any claim referred to in
any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such
claim shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the
securityholders and the holders of other indenture
securities in such manner that the Trustee, the
securityholders and the holders of other indenture
securities realize, as a result of payments from such
special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, the same
percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of
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the receipt by it from the Company of the funds and property
in such special account and before crediting to the
respective claims of the Trustee, the securityholders and
the holders of other indenture securities, dividends on
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant
to Title 11 of the United States Code or applicable State
law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds
and property so held in such special account. As used in
this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the United States
Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not
include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion between the
Trustee, the securityholders and the holders of other
indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to
the Trustee, the securityholders and the holders of other
indenture securities with respect to their respective
claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or
other property held in such special account or as security
for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to
the provisions of this subsection (a) as though such
resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such
three months' period it shall be subject to the provisions
of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
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(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship
arising from:
(i) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(ii) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such
advance and of the circumstances surrounding the making
thereof is given to the securityholders at the time and
in the manner provided in this Indenture;
(iii) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
(iv) an indebtedness created as a result of
services rendered or premises rented; or an
indebtedness created as a result of goods or securities
sold in a cash transaction as defined in subsection (c)
of this Section;
(v) the ownership of stock or of other securities of a
corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Company; or
(vi) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange,
acceptances, or obligations which fall within the
classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) As used in this Section:
(i) The term "default" shall mean any failure to make payment in
full of the principal of (or premium, if any, on) or interest
upon any of the Securities or the other indenture securities when
and as such principal (or premium, if any) or interest becomes
due and payable.
(ii) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as
defined in the Trust Indenture Act of 1939) outstanding
under any other indenture (A) under which the Trustee
is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection
(a) of this
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Section, and (C) under which a default
exists at the time of the apportionment of the funds
and property held in the special account referred to in
such subsection (a).
(iii) The term "cash transaction" shall mean any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and
payable upon demand.
(iv) The term "self-liquidating paper" shall mean
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purposes of financing the purchase,
processing, manufacture, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the
security, provided the security is received by the
Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
(v) The term "Company" shall mean any obligor upon the
Securities.
SECTION 7.14. Notice of Default.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series, the Trustee shall
transmit to all securityholders of such series, in the manner and
to the extent provided in Section 15.04, notice of such default
hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that except in the case
of a default in the payment of the principal of (or premium, if
any, on) or any interest on any Security of such series,
or, on the payment of any sinking or purchase fund installment, the
Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such
notice is in the interests of the securityholders of such series;
and provided, further, that in the case of any default of the
character specified in clause (c) of Section 6.03 no such notice
to securityholders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse
of time or both would become, a Default or an Event of Default
with respect to Securities of such series.
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SECTION 7.15. Appointment of Authenticating Agent.
The Trustee may appoint an authenticating agent or agents
(which may be an affiliate or affiliates of the Company) with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 2.09, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to
exercise corporate trust powers or to otherwise act as
authenticating agent, (b) is subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority, and (c) shall have at all times a combined
capital and surplus of not less than $5,000,000. If such
authenticating agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such authenticating
agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an authenticating agent shall cease to be eligible
in accordance with the provisions of this Section, such
authenticating agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an authenticating agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such authenticating agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of such authenticating agent, shall
continue to be an authenticating agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
An authenticating agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating
agent and to the Company. Upon receiving such a notice of
resignation or
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upon such a termination, or in case at any time
such authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor authenticating agent which shall be
acceptable to the Company and shall promptly give notice of such
appointment to all holders of Securities in the manner and to the
extent provided in Section 15.04. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 7.06.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office
capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have
Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing, shall
appoint in accordance with this Section an authenticating agent
(which, if so requested by the Company, shall be such affiliate
of the Company) having an office in a Place of Payment designated
by the Company with respect to such series of Securities,
provided that the terms and conditions of such appointment are
acceptable to the Trustee.
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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders
of a specified percentage in aggregate principal amount of the
Securities of any or all series may take any action (including
the making of any demand or request, the giving of any
authorization, 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 securityholders in
person or by agent or proxy appointed in writing, or (b) if
Securities of a series are issuable as Bearer Securities, by the
record of the holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of securityholders of such series of Securities duly
called and held in accordance with the provisions of Article
Nine, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of securityholders.
In determining whether the holders of a specified percentage
in aggregate principal amount of the Securities have taken any
action (including the making of any demand or request, the giving
of any authorization, direction, notice, consent or waiver or the
taking of any other action), (i) the principal amount of any
Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be outstanding for
such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an
Event of Default pursuant to the terms of such Original Issue
Discount Security at the time the taking of such of such action
is evidenced to the Trustee, and (ii) the principal amount of a
Security denominated in a foreign currency or currency unit shall
be the U.S. dollar equivalent, determined as of the date of
original issuance of such Security in accordance with Section
2.03(b) hereof, of the principal amount of such Security.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, 7.02 and 9.05,
proof of the execution of any instrument by a securityholder or
its agent or proxy, or of the holding by any person of a
Security, shall be sufficient and conclusive in favor of the
Trustee and the Company 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.
The principal amount and serial numbers of Registered
Securities held by any person, and the date of holding the same,
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shall be proved by the Security Register. The principal amount
and serial numbers of Bearer Securities held by any person, and
the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may also be
provided in any other manner which the Trustee deems sufficient.
The record of any securityholders' meeting shall be proved
in the manner provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or of the Trustee may deem the person in whose
name such Registered Security shall be registered upon the
Security Register to be, and may treat him as, the absolute owner
of such Registered Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other
writing thereon), for the purpose of receiving payment of or on
account of the principal of (and premium, if any, on) and,
subject to the provisions of Sections 2.05 and 2.07, any interest
on such Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or of the
Trustee shall be affected by any notice to the contrary. All
such payments so made to any 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 Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or of the Trustee may treat the bearer of
any Bearer Security and the bearer of any coupon as the owner of
such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
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Notwithstanding the foregoing, with respect to any temporary
or permanent global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or of the
Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Common Depositary or a U.S.
Depositary, as the case may be, or impair, as between a Common
Depositary or a U.S. Depositary and holders of beneficial
interests in any temporary or permanent global Security, as the
case may be, the operation of customary practices governing the
exercise of the rights of the Common Depositary or the U.S.
Depositary as holder of such temporary or permanent global
Security.
SECTION 8.04. Company-Owned Securities Disregarded.
In determining whether the holders of the required aggregate
principal amount of Securities Outstanding have provided any
request, demand, authorization, direction, notice, consent or
waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities, or by any person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other
obligor on the Securities, shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be
protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the
Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right
to vote such Securities and that the pledgee is not the Company
or any other obligor on the Securities or a person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. Revocation Of Consents; Future
Securityholders Bound.
At any time prior to the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action, any
holder of a Security, the identifying number of which is shown by
the evidence to be included in the Securities the holders of
which have consented to such action, may, by filing written
notice with the Trustee at its principal corporate trust office
and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security
shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security and of any Security
issued upon registration of transfer of or in exchange or
substitution therefor in respect of anything
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done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the
holders of the percentage in aggregate principal amount of the
Securities 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.
SECTION 8.06. Record Date.
The Company may, but shall not be obligated to, set a record
date for purposes of determining the identity of holders of
Securities of any series entitled to vote or consent to any
action by vote or consent or to otherwise take any action under
this Indenture authorized or permitted by Section 6.12 or Section
6.13 or otherwise under this Indenture. Such record shall be the
later of the date 20 days prior to the first solicitation of such
consent or vote or other action or the date of the most recent
list of holders of such Securities delivered to the principal
corporate trust office of the Trustee pursuant to Section 5.01
prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of
business on such record date shall be entitled to vote or consent
or take such other action, or to revoke any such action, whether
or not such persons continue to be holders after such record
date, and for that purpose the Outstanding Securities shall be
computed as of such record date.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meeting.
A meeting of holders of any or all series of Securities may
be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to waive any default
hereunder and its consequences, or to take any other action
authorized to be taken by securityholders pursuant to any of the
provisions of Article Six;
(b) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 10.02; or
(d) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate
principal
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amount of the Securities of any or all series, as
the case may be, under any other provision of this Indenture
or under applicable law.
SECTION 9.02. Call of Meeting by Trustee.
The Trustee may at any time call a meeting of
securityholders of any or all series to take any action specified
in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London,
England, as the Trustee shall determine. Notice of every meeting
of the securityholders of any or all series, setting forth the
time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in the
manner provided in Section 15.04 not less than 20 nor more than
180 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company, pursuant to a Board
Resolution, or the holders of at least ten percent in aggregate
principal amount of the Securities of any or all series, as the
case may be, then Outstanding, shall have requested the Trustee
to call a meeting of securityholders of any or all series to take
any action authorized in Section 9.01, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have provided notice of such
meeting in the manner provided in Section 15.04 within 30 days
after receipt of such request, then the Company or the holders of
such Securities in the amount above specified may determine the
time and the place in said Borough of Manhattan, The City of New
York, or in London, for such meeting and may call such meeting by
giving notice thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of securityholders, a
person shall be a holder of one or more Securities of such series
Outstanding with respect to which a meeting is being held or a
person appointed by an instrument in writing as proxy by such a
holder or holders. The only persons who shall be entitled to be
present or to speak at any meeting of the securityholders of any
series shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of securityholders of a series, in
regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and
duties of inspectors
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of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved
in the manner specified in Article Eight and the appointment of
any proxy shall be proved in the manner specified in Article
Eight or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Article Eight to certify to the holding of
Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Article
Eight or other proof.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by securityholders as provided in
Section 9.03, in which case the Company or the securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Securities
represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any
meeting each securityholder or proxy shall be entitled to one
vote for each $1,000 (or the U.S. Dollar equivalent thereof in
connection with Securities issued in a foreign currency or
currency unit) Outstanding principal amount of Securities of such
series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote except as a securityholder or
proxy. Any meeting of securityholders duly called pursuant to
the provisions of Section 9.02 or 9.03 may be adjourned from time
to time, and the meeting may be held as so adjourned without
further notice.
SECTION 9.06. Voting.
The vote upon any resolution submitted to any meeting of
securityholders shall be by written ballot on which shall be
subscribed the signatures of the securityholders or proxies and
on which shall be inscribed the identifying number or numbers or
to which shall be attached a list of identifying numbers of the
Securities held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each
meeting of securityholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original
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reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall be signed and verified by the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Holders.
Without the consent of any holders of Securities or coupons,
the Company, when authorized by or pursuant to Board Resolution,
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 of 1939 as
in force at the date of the execution thereof) for one or more of
the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, pursuant to Article Eleven
hereof, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company herein and
in the Securities;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its
Board of Directors and the Trustee shall consider to be for
the protection of the holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions,
conditions or provisions a Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth, with such period of
grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the
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issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the
holders of Securities of any series or any related coupons
in any material respect;
(d) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture
Act of 1939, or under any similar Federal statute hereafter
enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act of
1939, excluding however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939 or any
corresponding provision in any similar Federal statute
hereafter enacted;
(e) to modify, eliminate or add to any of the provisions of
this Indenture, provided that any such change or elimination
(i) shall become effective only when there is no Security of
any series Outstanding and created prior to the execution of
such supplemental indenture that is entitled to the benefit
of such provision or (ii) shall not apply to any Security
Outstanding;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture;
to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee, or to surrender any right or power
herein conferred upon the Company; or to make such other
provisions in regard to matters or questions arising under
this Indenture as shall not be inconsistent with any
provision of this Indenture or adversely affect in any
material respect the interests of the holders of the
Securities or any related coupons, including provisions
necessary or desirable to provide for or facilitate the
administration of the trusts hereunder; and
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add or change
any provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to Section
7.11.
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 adversely affects the Trustee's own
rights, duties
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or immunities under this Indenture or otherwise.
No supplemental indenture shall be effective as against the
Trustee unless and until the Trustee has duly executed and
delivered the same.
SECTION 10.02. Supplemental Indentures with Consent of
Holders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than 66 2/3% in aggregate principal
amount of the Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class),
the Company, when authorized by a Board Resolution, 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 of 1939 as in force
at the date of the 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
Securities of each such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture
shall (1) extend the fixed maturity of any Securities, or reduce
the principal amount thereof or premium, if any, or reduce the
rate or extend the time of payment of interest thereon, without
the consent of the holder of each Security so affected, or (2)
reduce the aforesaid percentage of Securities, the consent of the
holders of which is required for any such supplemental indenture,
without the consent of the holders of all Securities then
Outstanding.
Upon the request of the Company, accompanied by a copy of a
Board Resolution certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of securityholders 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.
It shall not be necessary for the consent of the
securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Company shall provide notice, in the manner and to
the extent provided in Section 15.04, setting forth in general
terms the substance of such supplemental indenture, to all
holders of Securities of each series so affected. Any failure of
the Company so to provide such notice, or any defect therein,
shall not,
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however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article Ten shall comply with the Trust
Indenture Act of 1939, as then in effect. Upon the execution of
any supplemental indenture pursuant to the provisions of this
Article Ten and subject to the provisions in any supplemental
indenture relating to the prospective application of such
instrument, 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 of
Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto 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.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Opinion of Counsel as conclusive evidence
that any such supplemental indenture complies with the provisions
of this Article Ten.
SECTION 10.04. Notation on Securities.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. New Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered, without
charge to the securityholders, in exchange for the Securities of
such series then Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain
Terms.
The Company covenants that it will not merge into or
consolidate with any other corporation or sell or convey all or
substantially all of its assets to any person, firm or
corporation, unless (1) either the Company shall be the continu-
ing corporation,
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or the successor corporation (if other than the
Company) shall be a corporation organized and existing under the
laws of the United States of America or a state thereof or the
District of Columbia and such corporation shall expressly assume
the due and punctual payment of the principal of (and premium, if
any, on) and any interest on all the Securities, according to
their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture satisfactory
to the Trustee, executed and delivered to the Trustee by such
corporation, and (2) the Company or such successor corporation,
as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or
conveyance and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for, and may exercise every right and power of, the
Company, with the same effect as if it had been named herein as
the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order
of such successor corporation, instead of the Company, and
subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of
the execution thereof.
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 Securities thereafter to be issued
as may be appropriate.
SECTION 11.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any
such assumption, complies with the provisions of this Article
Eleven.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture; Certificate of
Satisfaction.
If at any time
(a) the Company shall have delivered to the Trustee for
cancellation all Securities of any series theretofore
authenticated and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 2.07,
(ii) Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 2.09, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 3.03, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 4.03), or
(b) all such Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (i)
shall have become due and payable, or (ii) are by their
terms to become due and payable within one year, or (iii)
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption, and the Company in the case of (i),
(ii) or (iii) above shall deposit or cause to be deposited
with the Trustee as trust funds the entire amount (other
than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 12.04) sufficient to pay
at maturity or upon redemption all Securities of such series
and coupons not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
any interest due or to become due to such date of maturity
or date fixed for redemption, 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 with respect
to such series, then this Indenture shall cease to be of
further effect with respect to the Securities of such
series, and the Trustee, on demand of and at the cost and
expense of the Company and subject to Section 15.05, shall
execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of
such series. The Company agrees to reimburse the Trustee
for any costs or expenses
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thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of any series or of all series, the
obligations of the Company under Section 7.06 shall survive.
The Company will deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel which together shall state
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
SECTION 12.02. Deposited Moneys to be Held in Trust by
Trustee.
Subject to the provisions of the last paragraph of Section
4.03, all moneys deposited with the Trustee pursuant to Section
12.01 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the
Company acting as its own paying agent), to the persons entitled
thereto, of all sums due and to become due thereon for principal
and interest (and premium, if any) for which payment of such
money has been deposited with the Trustee.
SECTION 12.03. Paying Agent to Repay Moneys Held.
In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series and the
payment of all amounts due to the Trustee under Section 7.06, all
moneys with respect to such Securities then held by any paying
agent under the provisions of this Indenture shall, upon demand
of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of (and premium, if
any, on) or interest on any Security and not applied but
remaining unclaimed for two years after the date upon which such
principal (and premium, if any) or interest shall have become due
and payable, shall be repaid to the Company by the Trustee or
such paying agent on demand, and the holder of such Security
shall thereafter, as an unsecured general creditor, look only to
the Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate
Obligations.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security or
coupon, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company
or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the
acceptance of the Securities or coupons by the holders thereof
and as part of the consideration for the issue of the Securities.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article.
Unless, as specified pursuant to Section 2.03(b), provision
is made that either or both of (a) defeasance of the Securities
of a series under Section 14.02 and (b) covenant defeasance of
the Securities of a series under Section 14.03 shall not apply to
the Securities of a series, then the provisions of such Section
14.02 and Section 14.03, together with Sections 14.04 and 14.05,
shall be applicable to the Outstanding Securities of all series
upon compliance with the conditions set forth below in this
Article Fourteen.
SECTION 14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may cause itself to be
discharged from its obligations with respect to the Outstanding
Securities of any series on and after the date the conditions
precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below
(hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of
holders of Outstanding Securities of such series to receive,
solely from the trust fund
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described in Section 14.04 and as more fully set forth in such Section,
payments of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to
such Securities under Sections 2.07, 2.08, 2.09, 4.02 and 4.03 and
such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in
respect of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, defeasance with
respect to Securities of a series by the Company is permitted
under this Section 14.02 notwithstanding the prior exercise of
its rights under Section 14.03 with respect to the Securities of
such series. Following a defeasance, payment of the Securities
of such series may not be accelerated because of an Event of
Default.
SECTION 14.03. Covenant Defeasance.
The Company may cause itself to be released from its
obligations under any Sections applicable to Securities of a
series that are determined pursuant to Section 2.03(b) to be
subject to this provision with respect to the Outstanding
Securities of such series on and after the date the conditions
precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below
(hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 14.04. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions precedent or, as
specifically noted below, subsequent to application of either
Section 14.02 or Section 14.03 to the Outstanding Securities of
such series:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient,
without reinvestment, in the opinion of a nationally
recognized firm of independent
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public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee to pay and discharge, (i) the principal
of and any premium and interest on the Outstanding Securities of
such series to maturity or redemption, as the case may be, and
(ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such
series on the due dates thereof. Before such a deposit the
Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date or dates
in accordance with Article Three which shall be given effect
in applying the foregoing. For this purpose, "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,
and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government
obligation or a specific payment of principal of or interest
on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced
by such depository receipt;
(2) No Default, or event which after notice or lapse of
time, or both, would become a Default with respect to the
Securities of such series, shall have happened and be
continuing (A) on the date of such deposit or (B) insofar as
subsections 6.01(a) and (b) are concerned, at any time
during the period ending on the 123rd day after the date of
such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood
that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the
expiration of such period);
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have
a conflicting interest as defined in Section 7.08 or for
purposes of the Trust Indenture Act of 1939 with respect to
any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is
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qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended;
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered
national securities exchange under the Exchange Act to be
delisted;
(6) In the case of a defeasance under Section 14.02, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the Outstanding
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;
(7) In the case of covenant defeasance under Section 14.03,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the holders of the Outstanding
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;
(8) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in
connection therewith pursuant to Section 2.03(b); and
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent and subsequent
provided for in this Indenture relating to either the
defeasance under Section 14.02 or the covenant defeasance
under Section 14.03, as the case may be, have been complied
with.
SECTION 14.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
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All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section
14.04 in respect of the Outstanding Securities of such series
shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the
payment, either directly or through any paying agent (but not
including the Company acting as its own paying agent) as the
Trustee may determine, to the holders of such Securities of all
sums due and to become due thereon in respect of principal and
any premium and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money
or U.S. Government Obligations deposited pursuant to Section
14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by
it as provided in Section 14.04 which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or
covenant defeasance, provided that the Trustee shall not be
required to liquidate any U.S. Government Obligations in order to
comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding, if and to
the extent the deposited money or U.S. Government Obligations (or
the proceeds thereof) either (i) cannot be applied by the Trustee
in accordance with this Section because of a court order or by
operation of Article Sixteen or (ii) are for any reason
insufficient in amount, then the Company's obligations to pay
principal of and any premium and interest on the Securities of
such series shall be reinstated to the extent necessary to cover
the deficiency on any due date for payment. In any such case,
the Company's interest in the deposited money and U.S. Government
Obligations (and proceeds thereof) shall be reinstated to the
extent the Company's payment obligations are reinstated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties
and Securityholders.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities, any
legal or equitable
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right, remedy or claim under this Indenture or
under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the
parties hereto and their successors and assigns and of the
holders of the Securities.
SECTION 15.02. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or in behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.03. Notices, etc., to Company and Trustee.
Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities to or on the Company may
be given or served by being deposited postage prepaid first class
mail in a post office letter box addressed (until another address
is filed by the Company with the Trustee), as follows:
NationsBank Corporation, NationsBank Corporate Center, Charlotte,
North Carolina 28255-0065, Attention: Treasurer. Any notice,
direction, request or demand by any securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the principal
corporate trust office of the Trustee as set forth in Section
4.02.
SECTION 15.04. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice of holders of Securities of any
event,
(1) such notice shall be sufficiently given to holders
of Registered Securities if in writing and mailed, first-
class postage prepaid, to each holder of a Registered
Security affected by such event, at the address of such
holder as it appears in the Security Register, not earlier
than the earliest date, and not later than the latest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to holders
of Bearer Securities if published in an Authorized Newspaper
in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice to holders of Registered Securities by mail, then
such notification as shall be made with the approval of the
Trustee shall constitute sufficient notice to such holders for
every
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purpose hereunder. In any case where notice to holders of
Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular holder of a Registered Security shall affect the
sufficiency of such notice with respect to other holders of
Registered Securities or the sufficiency of any notice to holders
of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
holders of Bearer Securities as provided above, then such
notification as shall be given with the approval of the Trustee
shall constitute sufficient notice to such holders for every
purpose hereunder. Neither the failure to give notice by
publication to holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the
sufficiency of any notice to holders of Registered Securities
given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
holders of Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
SECTION 15.05. Evidence of Compliance with Conditions
Precedent.
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, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (other than
certificates provided pursuant to Section 4.04) shall include (1)
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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 15.06. Legal Holidays.
In any case where the date of maturity of interest on or
principal of the Securities or the date fixed for redemption of
any Securities shall be a Saturday or Sunday or a legal holiday
in New York, New York or Charlotte, North Carolina or in such
other place or places as the Company may designate pursuant to
Section 4.02, or a day on which banking institutions in New York,
New York or Charlotte, North Carolina or in such other place or
places are authorized by law or required by executive order to
close, then payment of interest or principal (and premium, if
any) need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION 15.07. 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 317, inclusive, of the Trust Indenture
Act of 1939, such required provision shall control.
SECTION 15.08. Execution 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.
SECTION 15.09. Governing Law.
This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance
with the laws of said State.
SECTION 15.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality
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and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and assigns,
covenants and agrees, and each holder of Securities of each
series, by his acceptance thereof, likewise covenants and agrees,
that anything in this Indenture or the Securities of any series
notwithstanding, all Securities of every series issued hereunder
shall be subordinated and subject, to the extent and in the
manner herein set forth, in right of payment to the prior payment
in full of all Senior Indebtedness. The provisions of this
Article are made for the benefit of all holders of Senior
Indebtedness, and any such holder may proceed to enforce such
provisions.
SECTION 16.02. Payment Over of Proceeds Upon Dissolution,
etc.
No payment on account of principal of (and premium, if any,
on) or interest on the Securities shall be made, and no
Securities shall be purchased, either directly or indirectly, by
the Company or any of its subsidiaries, if any default or event
of default with respect to any Senior Indebtedness, which permits
or with the giving of notice or passage of time or both would
permit the holders thereof (or a trustee on their behalf) to
accelerate the maturity thereof, shall have occurred and be
continuing and the Company and the Trustee shall have received
written notice thereof from the holders of at least ten percent
in principal amount of any kind or category of any Senior
Indebtedness (or the representative or representatives of such
holders) or the Trustee shall have received written notice
thereof from the Company.
In the event that any Security is declared due and payable
before the date specified therein as the fixed date on which the
principal thereof is due and payable pursuant to Article Six, or
upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of (and premium, if any, on) and
interest due or to become due upon all Senior Indebtedness shall
first be paid in full before the securityholders, or the Trustee,
shall be entitled to retain any assets (other than shares of
stock of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated, at least to the same extent as the Securities, to
the
94
<PAGE>
payment of all Senior Indebtedness which may at the time be
outstanding, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or
readjustment) so paid or distributed in respect of the Securities
(for principal or interest); and upon such dissolution or winding
up or liquidation or reorganization any payment or distribution
of assets of the Company of any kind or character, whether in
cash, property or securities (other than shares of stock of the
Company as reorganized or readjusted or securities of the Company
or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated, at least
to the same extent as the Securities, to the payment of all
Senior Indebtedness which may at the time be outstanding,
provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or
readjustment), to which the securityholders or the Trustee would
be entitled, except for the provisions of this Section, shall be
paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution, or by the securityholders or the Trustee if
received by them or it, directly to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the
respective amounts of Senior Indebtedness held by such holder) or
their representatives, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the
securityholders or to the Trustee.
No holders of Senior Indebtedness shall be prejudiced in
their right to enforce subordination of the Securities by any act
or failure to act on the part of the Company.
Subject to the payment in full of all Senior Indebtedness,
the securityholders shall be subrogated (equally and ratably with
the holders of all indebtedness of the Company which, by its
express terms, ranks on a parity with the Securities and is
entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior
Indebtedness until the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions on the
Senior Indebtedness pursuant to this Section shall, as between
the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Securities, be deemed to be
a payment by the Company to or on account of the Senior
Indebtedness, and no payments or distributions to the Trustee or
the holders of the Securities of assets by virtue of the
subrogation herein provided for shall, as between the Company,
its creditors other than the holders of Senior Indebtedness, and
the holders of the Securities, be deemed to be a payment to or on
account of the Securities. The provisions of this Article are
and are intended solely for the purpose of defining the relative
rights of the holders of the Securities, on the one hand, and the
holders of Senior Indebtedness, on the other hand, and
95
<PAGE>
nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair the obligation of
the Company, which is unconditional and absolute, to pay the
principal of (and premium, if any on) and interest on the
Securities as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of
the holders of the Securities and creditors of the Company other
than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the holder of any
Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article, of the holders of Senior
Indebtedness in respect of cash, property or securities of the
Company otherwise payable or delivered to the Trustee or such
securityholder upon the exercise of any such remedy.
Upon any payment or distribution pursuant to this Section,
the Trustee and the securityholders shall be entitled to rely
upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in this Section
are pending, and the Trustee, subject to the provisions of
Section 7.01, and the securityholders shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other
person making such payment or distribution delivered to the
Trustee or to the securityholders for the purpose of ascertaining
the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Section. In the
event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such
person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other
facts pertinent to the rights of such person under this Section,
and if such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to the
right of such person to receive such payment.
Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the
application by the Trustee or any paying agent of any moneys
deposited with it hereunder to the payment of or on account of
the principal of (and premium, if any, on) or any interest on
Securities if, at the time of such deposit (provided that the
time of such deposit was not more than ten days prior to the time
of such payment), such payment would not have been prohibited by
the foregoing provisions of this Section, or (b) any payment by
the Company or the Trustee to the securityholders of moneys in
connection with a redemption of Securities if (1) notice of such
96
<PAGE>
redemption has been given to the holders of the Securities to be
redeemed pursuant to Article Three hereof prior to the receipt by
the Trustee of the written notice referred to in Section 16.04
and (2) such notice of redemption is given not earlier than 60
days before the date fixed for redemption.
SECTION 16.03. Trustee to Effectuate Subordination.
The holder of each Security by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article and
appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 16.04. Trustee Not Charged with Knowledge of
Prohibition.
The Company shall provide prompt written notice to the
Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of any
series of the Securities; provided, however, that failure to give
such notice shall not affect the subordination of the Securities
to any Senior Indebtedness. Notwithstanding the provisions of
this Article or any other provision of this Indenture, but
subject to the provisions of Section 7.01, neither the Trustee
nor any paying agent shall be charged with knowledge of the
existence of any Senior Indebtedness, or of any default in the
payment of the principal of (or premium, if any, on) or interest
on any Senior Indebtedness, or of any facts which would prohibit
the making of any payment of moneys to or by the Trustee or any
such paying agent, unless and until the Trustee or such paying
agent shall have received written notice thereof from the Company
or the holders of at least ten percent in principal amount of any
kind or category of any Senior Indebtedness or the representative
or representatives of such holders (certified by the Company or
otherwise established to the reasonable satisfaction of the
Trustee or such paying agent to be such holders or
representatives); nor shall the Trustee or any such paying agent
be charged with knowledge of the curing or waiving of any such
default or of the elimination of the act or condition preventing
any such payment unless and until the Trustee or such paying
agent shall have received an Officers' Certificate to such
effect, and prior to the receipt of any such writing the Trustee
shall be entitled to assume that no such facts exist and that no
such cure or waiver has occurred; provided, however, that, if not
less than three business days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of the principal of
or interest on any Security), the Trustee or such paying agent
shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to
the contrary notwithstanding, the Trustee or such paying agent
shall have full power and authority to receive such
97
<PAGE>
moneys and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary
which may be received by it on or after such date.
SECTION 16.05. Rights of Trustee as Holder of Senior
Indebtedness.
The Trustee shall be entitled to all the rights set forth in
this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of
Senior Indebtedness; and nothing in Section 7.13, or elsewhere in
this Indenture, shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 7.06.
SECTION 16.06. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to
securityholders or the Company or any other person moneys or
assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise. With respect to
any holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations
as are specifically set forth in this Article Sixteen and no
implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 16.07. Article Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within
its meaning as fully for all intents and purposes as if such
paying agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 16.04,
16.05 and 16.06 shall not apply to the Company if it acts as
paying agent.
The Trustee, by its execution of this Indenture, hereby
accepts the trusts in this Indenture declared and provided, upon
the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, NATIONSBANK CORPORATION has caused this
Indenture to be signed and acknowledged by its Chairman of the
Board or its President or one of its Vice Presidents, and its
corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and THE BANK
OF NEW YORK has caused this Indenture to be signed and
acknowledged by one of its Assistant Vice Presidents, and its
corporate seal to be
98
<PAGE>
affixed hereunto, and the same to be
attested by one of its Assistant Vice Presidents, all as of the
day and year first above written.
NATIONSBANK CORPORATION
Attest:
By /s/ JOHN E. MACK
Senior Vice President
/s/ MARY-ANN LUCAS
[CORPORATE SEAL]
THE BANK OF NEW YORK
Attest:
By /s/ MARY JANE MORRISSEY
Assistant Vice President
/s/ ROBERT F. MCINTYRE
Assistant Vice President
[CORPORATE SEAL]
99
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
On the 31st day of January, 1995, before me personally
came John E. Mack, to me known, who, being by me duly sworn, did
depose and say that he resides at Charlotte, North Carolina; that
he is an Senior Vice President of NationsBank Corporation, one of
the parties described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that
it was so affixed by authority of the board of directors of said
corporation, and that he signed his name thereto by like
authority.
/s/ MELVA HANNA
Notary Public
10-27-95
[NOTARIAL SEAL]
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 30th day of January, 1995, before me personally
came Mary Jane Morrissey, to me known, who, being by me duly sworn,
did depose and say that he resides at 101 Barclay Street, NY, NY; that he
is an Assistant Vice President of The Bank of New York, one of
the parties described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that
it was so affixed by authority of the board of directors of said
corporation, and that he signed his name thereto by like
authority.
/s/
Notary Public
[NOTARIAL SEAL]
100
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE (1) BEARER SECURITY,
(2) SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL
SECURITY OR (3) INTEREST ON A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities]
This is to certify that the above-captioned Securities are
being acquired by or on behalf of, (or for offer to resell or for
resale to), and if this certificate is being delivered in
connection with a payment of interest, were beneficially owned by
or on behalf of, (a) a person (other than a financial institution
for purposes of resale during the restricted period) who is not a
United States person; or (b) a United States person (other than a
financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person acquiring
such Securities through the foreign branch of a United States
financial institution and who for purposes of this certification
holds such Securities through such financial institution on the
date hereof, and, in the case of either (i) or (ii), such United
States financial institution has agreed, for the benefit of the
Company, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as from time to
time amended, and the regulations thereunder; or (c) a financial
institution for purposes of resale during the restricted period
and such financial institution has not acquired such Securities
for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions. If the undersigned is a clearing organization, the
undersigned has obtained a similar certificate from its member
organizations on which this certificate is based; provided, however,
that if the undersigned has actual knowledge that the information
contained in such a certificate is false (and, absent documentary
evidence that the beneficial owner of such Security is not a
United States person, it will be deemed to have actual knowledge
that such certificate is false if it has a United States address
for such beneficial owner, other than a financial institution
described above), the undersigned will not deliver a Security in
temporary or definitive bearer form to the person who signed such
certificate notwithstanding the delivery of such certificate to
the undersigned.
As used herein, "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
<PAGE>
United States and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(1)(v) of the Treasury Regulations.
We undertake to advise you by telex if the above statement
as to beneficial ownership is not correct on the date of delivery
of the above-captioned Securities or on the interest payment date
with respect to the above-captioned Securities, as the case may
be, as to all of such Securities.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _____________, 19__
[To be dated on or after
______________, 19__ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled
to Receive Bearer
Security or Interest]
________________________
(Authorized Signatory)
Name:____________________
Title:___________________
A-2
<PAGE>
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based on certificates we have
received from each of the persons appearing in our records as
persons entitled to a portion of ___________ principal amount of
the above-captioned Securities (our "Qualified Account Holders")
substantially in the form set out in Exhibit A.1 to the Indenture
relating to the above-captioned Securities, such principal amount
of Securities (a) is owned by a person (other than a financial
institution for purposes of resale during the restricted period)
who is not a United States person; (b) is owned by a United
States person (other than a financial institution for purposes of
resale during the restricted period) who is (i) a foreign branch
of a United States financial institution or (ii) a United States
person who acquired such Securities through the foreign branch of
a United States financial institution and who for purposes of
this certification holds such Securities through such financial
institution on the date hereof and, in either case, such United
States financial institution has agreed, for the benefit of the
Company, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as from time to
time amended, and the regulations thereunder; or (c) is owned by
a financial institution for purposes of resale during the
restricted period and such financial institution has certified
that it has not acquired such Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
To the extent that we have knowledge that any of such
certificates from a Qualified Account Holder is false and to the
extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not
submitting for exchange any portion of the temporary global
Security attributable thereto.
We further certify that as of the date hereof we have not
received any notification from any of our Qualified Account
Holders to the effect that the statements made by such Qualified
Account Holders with respect to any portion of the part submitted
herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
As used herein, "United States person" means a citizen or
resident of the United States, a corporation, partnership or
A-3
<PAGE>
other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _________________, 19___
[To be dated no earlier than the
Exchange Date]
[Morgan Guaranty Trust
Company of New York, Brussels
Office, as Operator of the
Euroclear System]
[Cedel S.A.]
By: ________________________________
A-4
<PAGE>
EXHIBIT A.3
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. TO OBTAIN INTEREST]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that interest payable on the interest
payment date[s] on [insert date(s)] will be paid with respect to
_____ principal amount of the above-captioned Securities with
respect to which we have received from the persons appearing in
our records as being entitled to interest payable on such date
(our "Qualified Account Holders") certificates substantially in
the form set out in Exhibit A.1 to the Indenture relating to the
above-captioned Securities that such Securities (a) are owned by
a person (other than a financial institution for purposes of
resale during the restricted period) who is not a United States
person; (b) are owned by a United States person (other than a
financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person who acquired
such Securities through the foreign branch of a United States
financial institution and who for purposes of this certification
holds such Securities through such financial institution on the
date hereof and, in either case, such United States financial
institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as from time to time amended, and
the regulations thereunder; or (c) are owned by a financial
institution for purposes of resale during the restricted period
and such financial institution has certified that it has not
acquired such Securities for purposes of resale directly or
indirectly to a United States person or to a person within the
United States or its possessions.
To the extent that we have knowledge that any of such
certificates from a Qualified Account Holder is false and to the
extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not
requesting that payment be made for interest with respect
thereto.
We further certify that as of the date hereof we have not
received any notification from any of our Qualified Account
Holders to the effect that the statements made by such Qualified
Account Holders with respect to any interest payment on any
portion of the principal amount of the Securities referred to
above are no longer true and cannot be relied upon as of the date
hereof.
A-5
<PAGE>
We undertake that any interest received by us and not paid
as provided above shall be returned to the Trustee for the above-
captioned Securities immediately prior to the expiration of two
years after such interest payment date in order to be repaid by
such Trustee to the above issuer at the end of two years after
such interest payment date.
As used herein, "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 and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source, "United States" means the United States of America
(including the States and the District of Columbia),
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands, "restricted period" means the period described
in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
"financial institution" means the persons described in Section
1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _________________, 19___
[To be dated on or after the
most recent relevant interest
payment date]
[Morgan Guaranty Trust
Company of New York, Brussels
Office, as Operator of the
Euroclear System]
[Cedel S.A.]
By: ________________________________
A-6
<PAGE>
[FORM OF SUBORDINATED NOTE]
REGISTERED
NUMBER R______ [U.S.]$_________
CUSIP 638585 ___
THIS NOTE IS NOT A SAVINGS ACCOUNT
OR A DEPOSIT, IS NOT AN OBLIGATION
OF OR GUARANTEED BY ANY BANKING OR
NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
______% _______________ NOTE, DUE ____
NATIONSBANK CORPORATION, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
,
or registered assigns, the principal sum of
_________________________ [United States DOLLARS] on
_____________________, 19___, and to pay interest on said
principal sum, [semi-annually in arrears on ____________________
and ___________________ of each year,] at the [rate of ___% per
annum/variable interest rate provisions], from the ____________
or ____________, as the case may be, next preceding the date of
this Note to which interest has been paid, unless the date hereof
is a date to which interest has been paid, in which case from the
date of this Note, or unless no interest has been paid on the
Notes, in which case from ________________________, 19___, until
payment of such principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after a
record date for the Notes (which shall be the close of business
on the last day of the calendar month next preceding an interest
payment date) and before the next succeeding interest payment
date, this Note shall bear interest from such interest payment
date; provided, however, that if the Company shall default in the
payment of interest due on such interest payment date, then this
Note shall bear interest from the next preceding interest payment
date to which interest has been paid, or, if no interest has been
paid on the Notes from __________________, 19___. The interest
so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in such Indenture, be
paid to the person in whose name this Note (or one or more
predecessor Notes evidencing all or a portion of the same debt as
this Note) is registered at the close of business on the record
date for such interest payment date. The principal of and
interest on this Note are payable [in such coin or currency of
the United States of America as at the time of payment is legal
tender for payment of public and private debts, at the office or
agency of the Company in the Borough of Manhattan, The City of
New York or such other places that the Company shall designate as
provided in the Indenture] [at the option of the holder (a) at
the office or agency of the Company in the Borough of Manhattan,
the City of New York or such other place or places that the
Company shall designate as provided in such Indenture, in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts or (b) subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in
the Indenture) to rescind the designation of any paying agent, at
the [main] offices of __________ in __________, __________ in
__________, __________ in __________, __________ in __________
and __________ in __________, or at such other offices or
agencies as the Company may designate, by [United States dollar]
check drawn on, or transfer to a [United States dollar] account
maintained by the payee with, a bank in [the City of New York]
(so long as the applicable paying agent has received proper
transfer instructions in writing)]; provided, however, that
interest may be paid, at the option of the Company, by [United
States dollar] check mailed to the person entitled thereto at his
address last appearing on the Security Register of the Company
relating to the Notes. Any interest not punctually paid or duly
provided for shall be payable as provided in such Indenture.
[If Securities of the series are to be offered to United
States Aliens, insert The Company will pay to the holder of
this Note who is a United States Alien (as defined below) such
additional amounts as may be necessary in order that every net
payment of the principal of and interest on this Note, after
deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed by
the United States (as defined below) or any political subdivision
or taxing authority thereof or therein upon or as a result of
such payment, will not be less than the amount provided for in
this Note to be then due and payable; provided, however, that the
Company shall not be required to make any payment of additional
amounts for or on account of:
(a) any tax, assessment or other governmental charge
which would not have been imposed but for (i) the existence
of any present or former connection between such holder (or
between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such holder, if
such holder is an estate, trust, partnership or corporation)
and the United States, including, without limitation, such
holder (or such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a citizen or
resident thereof or being or having been present or engaged
in trade or business therein or having or having had a
permanent establishment therein or (ii) the presentation by
the holder of such Note for payment on a date more than 10
days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer,
personal property tax or similar tax, assessment or other
governmental charge;
(c) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as
a personal holding company or foreign personal holding
company with respect to the United States or as a corporation
which accumulates earnings to avoid United States federal
income tax;
(d) any tax, assessment or other governmental charge
which is payable otherwise than by withholding from payments
of principal of or interest on, such Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment
of principal of or interest on, the Notes, if such payment
can be made without such withholding by any of the other
paying agents in Western Europe;
(f) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to
comply with certification, information, documentation or
other reporting requirements concerning the nationality,
residence, identity or connections with the United States of
the holder or beneficial owner of such Note, if such
compliance is required by statute or by regulation of the
United States Treasury Department as a pre-condition to
relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge
imposed on interest received by (i) a 10% shareholder (as
defined in Section 871(h)(3)(B) of the United States Internal
Revenue Code of 1986, as amended (herein called the "Code"),
and the regulations that may be promulgated thereunder) of
the Company or (ii) a controlled foreign corporation within
the meaning of the Code; or
(h) any combination of items (a), (b), (c), (d), (e), (f)
and (g);
nor will additional amounts be paid with respect to any payment
of principal of or interest on this Note to any holder which is a
United States Alien who is a fiduciary or partnership or other
than the sole beneficial owner of any such payment to the extent
that a beneficiary or settlor with respect to such fiduciary, a
member of such a partnership or the beneficial owner would not
have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the holder
of this Note. Except as specifically provided in the Notes of
this series, the Company shall not be required to make any
payment with respect to any tax, assessment or governmental
charge imposed by any government or any political subdivision
thereof or taxing authority therein. Whenever in this Note there
is mentioned, in any context, the payment of the principal of or
interest on, or in respect of, a Note, such mention shall be
deemed to include mention of the payment of additional amounts
provided for herein to the extent that, in such context,
additional amounts are, were or would be payable in respect
thereof pursuant to the provisions hereof and express mention of
the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional
amounts in those provisions hereof where such express mention is
not made. The term "United States Alien" means any person who,
for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust or a foreign
partnership to the extent that one or more of its members is, for
United States federal income tax purposes, a foreign corporation,
a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust, and the term "United States" means
the United States of America (including the States and the
District of Columbia).]
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this
Note shall not be entitled to any benefit under such Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by manual or facsimile signature under its
corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION,
Attest:
By:
Secretary Chairman and
Chief Executive Officer
[CORPORATE SEAL]
Dated
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
,
as Trustee,
[By:
as Authenticating Agent]
By:
Authorized Signatory
[Reverse Side of Note]
NATIONSBANK CORPORATION
______% __________ NOTE, DUE __________
This Note is one of a duly authorized issue of Securities of
the Company unlimited in aggregate principal amount (herein
called the "Notes") issued and to be issued under an Indenture
dated as of __________ (herein called the "Indenture"), between
the Company and __________ (herein called the "Trustee," which
term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the holders of the
Notes [and any coupons appertaining thereto], and the terms upon
which the Notes are, and are to be, authenticated and delivered.
This Note is also one of the Notes designated as the [_____%
___________] Notes, due __________ limited in aggregate principal
amount to [U.S.] $__________. [The Notes are issuable as Bearer
Securities [, with interest coupons attached,] in the
denomination of U.S. $__________, and as Registered Securities,
without coupons, in denominations of U.S. $__________ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Bearer
Securities and Registered Securities of this series are
exchangeable for a like aggregate principal amount of Registered
Securities of this series and of like tenor and of any authorized
denominations, as requested by the holder surrendering the same,
upon surrender of the Note or Notes to be exchanged at any office
or agency described below where Registered Securities of this
series may be presented for registration of transfer [Registered
Securities, including Registered Securities received in exchange
for Bearer Securities, may not be exchanged for Bearer
Securities]].
[If Securities of the series are to be offered to United
States Aliens, insert The Note may be redeemed, as a whole but
not in part, at the option of the Company, at a redemption price
equal to 100% of their principal amount, together with interest
accrued to the date fixed for redemption, if, as a result of any
amendment to, or change in, the laws (or any regulations or
rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
affecting taxation, or any amendment to or change in an official
position regarding the application or interpretation of such
laws, regulations or rulings, which amendment or change is
effective on or after __________, 19__, the Company will become
obligated to pay additional amounts (as described on the face
hereof) on the next succeeding interest payment date, provided
that such obligation to pay additional amounts cannot be avoided
by the use of reasonable measures available to the Company;
provided, however, that in the opinion of the Company, which
opinion shall be rendered in good faith, such measures need not
be used if they have or will have a material adverse impact on
the conduct of its business; provided further, however, that (a)
no notice of such redemption may be given earlier than 90 days
prior to the earliest date on which the Company would be
obligated to pay such additional amounts were a payment in
respect of the Notes then due, and (b) at the time notice of such
redemption is given, such obligation to pay such additional
amounts remains in effect. Immediately prior to the giving of
any notice of redemption pursuant to this paragraph, the Company
shall deliver to the Trustee a 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 an opinion of
counsel to the Company to such effect based on such statement of
facts.]
[If the Securities of the series are issuable as Bearer
Securities and if applicable*, insert In addition, if the
Company determines that any payment made outside the United
States and its possessions by the Company or any of its paying
agents of the full amount of principal or interest due with
respect to any Bearer Security or coupon would, under any present
or future laws or regulations of the United States affecting
taxation or otherwise, be subject to any certificate,
information, documentation 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
Bearer Security or coupon who is a United States Alien (as
defined herein) (other than such a requirement (a) which would
not be applicable to a payment made by the Company or any one of
its paying agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, or
(b) which can be satisfied by the custodian, nominee or other
agent certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of
such beneficial owner is not otherwise subject to any such
requirement or (c) which would not be applicable to a payment
made to any other paying agent in Western Europe), the Company at
its election will either (x) redeem the Notes, as a whole but not
in part, at a redemption price equal to 100% of their principal
amount, together with interest accrued to the date fixed for
redemption, or (y) if and so long as any such certification,
information, documentation or other reporting requirement would
be fully satisfied by payment of a backup withholding tax or
similar charge, pay to the holders of Bearer Securities who are
United States Aliens certain additional amounts specified in the
Bearer Securities of this series. The Company will make such
*Generally this provision will only be applicable if the
Securities of the series bear interest at a fixed rate.
determination and election and notify the Trustee thereof as soon
as practicable, and the Trustee will promptly give notice of such
determination in the manner provided below (the "Determination
Notice"), in each case stating the effective date of such
certification, information, documentation or other reporting
requirement, whether the Company will redeem the Notes or will
pay to the holders of Bearer Securities who are United States
Aliens the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which the
redemption of the Notes must take place. If the Company elects
to redeem the Notes, such redemption shall take place on such
date, not later than one year after publication of the
Determination Notice, as the Company elects by notice to the
Trustee at least 75 days before such date, unless shorter notice
is acceptable to the Trustee. Upon receipt of notice from the
Company as to the date of redemption, the Trustee shall cause
notice thereof to be duly given in the manner provided below.
Notwithstanding the foregoing, the Company will not so redeem the
Notes if the Company subsequently determines, not less than 30
days prior to the date fixed for redemption, that subsequent
payments on Notes would not be subject to any such requirement,
in which case the Company will promptly notify the Trustee, which
will promptly give notice of that determination in the manner
provided below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts to
the holders of Bearer Securities who are United States Aliens,
and as long as the Company is obligated to pay such additional
amounts to such holders, the Company may subsequently redeem the
Notes, at any time, as a whole but not in part, at a redemption
price equal to 100% of their principal amount, together with
interest accrued to the date fixed for redemption, including any
additional amounts required to be paid but without reduction for
applicable United States of America withholding taxes.]
[Insert Additional Provisions Relating to Determination and
Payment of Interest]
The indebtedness of the Company evidenced by the Notes,
including the principal thereof and interest thereon, is, to the
extent and in the manner set forth in the Indenture, subordinate
and junior in right of payment to its obligations to holders of
Senior Indebtedness, as defined in the Indenture, and each holder
of the Notes, by the acceptance thereof, agrees to and shall be
bound by such provisions of the Indenture.
[[Except as otherwise provided herein, the Notes are not
subject to any sinking fund and are not subject to redemption at
the option of the Company prior to maturity.]
[The provisions of Article Fourteen of the Indenture do not
apply to Securities of this series.]
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register of the Company relating to
the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company at
_________________ designated by it pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee or
the Security Registrar duly executed by, the registered holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new [Registered Securities/Notes], of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
[If the Notes are not issuable as Bearer Securities, insert
The Notes are issuable only as registered Notes without coupons
in the denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture, and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of different authorized denominations,
as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
[If the Note is payable in a currency other than U.S. Dollars
(the "Specified Currency"), the Note may contain certain
provisions relating to the calculation and payment of the
Specified Currency, including:
(1) In the event of an official redenomination of the
Specified Currency (including any Specified Currency that
is a composite currency) the obligation of the Company
with respect to payments on Notes denominated in the
Specified Currency shall, in all cases be deemed
immediately following such redenomination to provide for
the payment of that amount of redenominated currency
representing the amount for such obligations immediately
before such redenomination.
(2) If payment on a Note is required to be made in a
Specified Currency and such currency is unavailable due
to the imposition of exchange controls or other
circumstances beyond the Company's control, or is no
longer used by the government of the country issuing such
currency for the settlement of transactions by public
institutions of or within the international banking
community, then all payments due on such date with
respect to such Note shall be made in U.S. dollars until
such currency is again available or so used. The amount
so payable on any date in such foreign currency shall be
converted into U.S. dollars on the basis of the Market
Exchange Rate (hereinafter defined) on the last date such
Specified Currency was available. The "Market Exchange
Rate" with respect to any currency other than U.S.
dollars means, for any day, the noon dollar buying rate
in the City of New York on such day for cable transfers
of such currency as published by the Federal Reserve Bank
of New York, or, if such rate is not published for such
day, the equivalent rate as determined by the Paying
Agent.
(3) If the official unit of any component currency is
altered by way of combination or subdivision, the number
of units of that currency as a component shall be divided
or multiplied in the same proportion. If two or more
component currencies are consolidated into a single
currency, the amounts of those currencies as components
shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated
component currencies expressed in such single currency.
If any component currency is divided into two or more
currencies, the amount of the original component currency
as a component shall be replaced by the amounts of such
two or more currencies having an aggregate value on the
date of division equal to the amount of the former
component currency immediately before such division. Any
payment required to be made on Notes denominated in a
Specified Currency other than U.S. dollars which is
instead made in U.S. dollars under the circumstances
described above will not constitute a default under the
Indenture.]
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee and any agent of the Company or
the Trustee may treat the person in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes,
whether ornot this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default (defined in the Indenture as certain
events involving the bankruptcy of the Company) shall occur with
respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration
provided in the Indenture in case of a default in the payment of
interest or the performance of any other covenant by the Company.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes [and any related coupons] under the
Indenture at any time by the Company with the consent of the
holders of 66-2/3% in aggregate principal amount of the Notes
then outstanding and all other Securities then outstanding issued
under the Indenture and affected by such amendment and
modification. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the
Notes then outstanding and all other Securities then outstanding
issued under the Indenture and affected thereby, on behalf of the
holders of all such Securities [and any related coupons], to
waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and interest [(including any additional amounts, as
described herein)] on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly
waived and released.
The Notes of this series shall be dated the date of their
authentication.
[If the Notes are issuable as Bearer Securities, insert The
Indenture, the Notes and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the
State of New York.]
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
__________
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT _________ Custodian _________(Cust)(Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above
list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code, must be
printed or typewritten.)
the within
Note, and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever and must be guaranteed.
[Notes issued in bearer form will contain additional legends and
restrictions on transfer required by any Depositary and by the
Internal Revenue Code and Regulations thereunder, including that
required by Internal Revenue Code Section 163(f)(2)(B)]
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following legend is
applicable. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF
OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE COMPANY AND IS
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES CUSIP 638585 ____
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
NationsBank Corporation, a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the "Company," which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to ________
_______________________________________________________________,
or registered assigns, the principal sum of ___________________ DOLLARS on the
Stated Maturity Date specified above (except to the extent redeemed or repaid
prior to the Stated Maturity Date), and to pay interest on said principal sum,
semiannually in arrears on ____________ and __________ of each year (each an
"Interest Payment Date"), at the Interest Rate per annum specified above,
until payment of such principal sum has been made or duly provided for,
commencing on the first Interest Payment Date next succeeding the Original
Issue Date specified above, unless the Original Issue Date occurs between a
Regular Record Date, as defined below, and the next succeeding Interest
Payment Date, in which case commencing on the Interest Payment Date following
the next succeeding Regular Record Date, and on the Stated Maturity Date shown
above (or any Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which option such has been exercised, each such
Stated Maturity Date, Redemption Date and Optional Repayment Date being herein
referred to as a "Maturity Date" with respect to the principal payable on such
date). Interest on this Note will accrue from the Original Issue Date
specified above until the principal amount is paid and will be computed on the
basis of a 360-day year of twelve 30-day months. Interest payments will be in
the amount of interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid or duly provided for
or, if no interest has been paid, from the Original Issue Date specified
above, to but excluding the Interest Payment Date or Maturity Date, as the
case may be. If the Maturity Date or an Interest Payment Date falls on a day
which is not a Business Day as defined below, principal or interest payable
with respect to such Maturity Date or Interest Payment Date will be paid on
the next succeeding Business Day with the same force and effect as if made on
such Maturity Date or Interest Payment Date, as the case may be, and no
additional interest shall accrue for the period from and after such Maturity
Date or Interest Payment Date. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions, be paid to the person in whose name this Note (or one or more
predecessor Notes evidencing all or a portion of the same debt as this Note)
is registered at the close of business on the Regular Record Date, which shall
be the __________ or the __________, whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date; provided, however,
that the first payment of interest on any Note with an Original Issue Date, as
specified above, between a Regular Record Date and an Interest Payment Date or
on an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the person in whose name
this Note is registered at the close of business on such next succeeding
Regular Record Date; and provided, further, that interest payable on the
Maturity Date will be payable to the person to whom the principal hereof shall
be payable. Any interest not punctually paid or duly provided for shall be
payable as provided in the Indenture. As used herein, "Business Day" means
any day, other than a Saturday or Sunday, on which banks in The City of New
York are not authorized or required by law to be closed.
The principal of and interest on this Note are payable in immediately
available funds in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts at
the office or agency of the Company designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Company, by
check mailed to the person entitled thereto at his address last appearing on
the registry books of the Company relating to the Notes. Notwithstanding the
preceding sentence, payments of principal of and interest payable on the
Maturity Date will be made by wire transfer of immediately available funds to
a designated account maintained in the United States upon (i) receipt of
written notice by the Issuing and Paying Agent from the holder hereof not less
than one Business Day prior to the due date of such principal and (ii)
presentation of this Note to NationsBank of Georgia, National Association as
Issuing and Paying Agent at Corporate Trust Administration, 600 Peachtree
Street, Suite 900, Atlanta, Georgia 60608 (the "Corporate Trust Office").
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or the Authenticating Agent on behalf of the Trustee by manual
signature, this Note shall not be entitled to any benefit under such Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed, by manual or facsimile signature, under its corporate seal or a
facsimile thereof.
NATIONSBANK CORPORATION
By: ___________________________
Title: Senior Vice President and
Treasurer
[SEAL]
ATTEST:
By:___________________________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:_____________
The Bank of New York, as Trustee
By: NationsBank of Georgia, National
Association, as Authenticating
Agent
By: __________________________________
Authorized Signatory
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES
(Fixed Rate)
This Medium-Term Note is one of a duly authorized series of Securities
of the Company unlimited in aggregate principal amount (herein called the
"Notes"), issued and to be issued under an Indenture dated as of January
1, 1995 (herein called the "Indenture"), between the Company and The Bank
of New York, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights thereunder of the Company, the Trustee and the
holders of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes may bear different dates, mature at
different times, bear interest at different rates and vary in such other ways
as are provided in the Indenture.
The Indebtedness of the Company evidenced by the Notes, including the
principal thereof and interest thereon, is, top the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to its
obligations to holders of Senior Indebtedness, as defined in the Indenture,
and each holder of the Notes, by the acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the holder on the
Optional Repayment Date(s), if any, indicated on the face hereof. If no
Optional Repayment Dates are set forth on the face hereof, this Note may not
be so repaid at the option of the holder hereof prior to the Stated Maturity
Date. On any Optional Repayment Date this Note shall be repayable in whole or
in part in increments of $1,000 at the option of the holder hereof at a
repayment price equal to 100% of the principal amount to be repaid, together
with interest thereon payable to the date of repayment. For this Note to be
repaid in whole or in part at the option of the holder hereof, this Note must
be received, with the form entitled "Option to Elect Repayment" below duly
completed, by the Issuing and Paying Agent at the Corporate Trust Office, or
such other address of which the Company shall from time to time notify the
holders of the Notes, not more than 60 nor less than 30 days prior to an
Optional Repayment Date. Exercise of such repayment option by the holder
hereof shall be irrevocable.
[Notes issued in bearer form or payable in a currency other than U.S.
dollars will contain additional provisions relating to payment, payment
currency and depositary procedures as well as provisions relating to
United States tax and withholding laws.]
This Note may be redeemed at the option of the Company on any date on
and after the Initial Redemption Date, if any, specified on the face hereof
(the "Redemption Date"). If no Initial Redemption Date is set forth on the
face hereof, this Note may not be redeemed at the option of the Company prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in
part in increments of $1,000 at the option of the Company at the applicable
Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the Company, the "Redemption
Price" shall initially be the Initial Redemption Percentage, specified on the
face hereof, of the principal amount of this Note to be redeemed and shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
If an Event of Default (defined in the Indenture as certain events
involving the bankruptcy of the Company) shall occur with respect to the
Notes, the principal of all the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. There is no right of
acceleration provided in the Indenture in case of a default in the payment of
interest or the performance of any other covenant by the Company.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Notes under the Indenture at any
time by the Company with the consent of the holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding and all other
Securities then outstanding under the Indenture and affected by such amendment
and modification. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Notes then
outstanding and all other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all such Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any predecessor
or successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for issue hereof, expressly waived and released.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the registry books
of the Company relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Company designated by
it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[Bearer Notes will contain additional conforming provisions.]
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Issuing and Paying Agent and any agent of the Company or the
Issuing and Paying Agent may treat the person in whose name this Note is
registered as the absolute owner hereof for the purpose of receiving payment
as herein provided and for all other purposes, whether or not this Note be
overdue, and neither the Company, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY SYSTEM SHALL BE
DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The Notes are being issued by
means of a book-entry system with no physical distribution of certificates to
be made except as provided in the Indenture. The book-entry system maintained
by Depository Trust Company ("DTC") will evidence ownership of the Notes, with
transfers of ownership effected on the records of DTC and its participants
pursuant to rules and procedures established by DTC and its participants. The
Company will recognize Cede & Co., as nominee of DTC, while the registered
Owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer of principal
and interest to participants of DTC will be the responsibility of DTC, and
transfer of principal and interest to beneficial owners of the Notes by
participants of DTC will be the responsibility of such participants and other
nominees of such beneficial owners. So long as the book-entry system is in
effect, the selection of any Notes to be redeemed will be determined by DTC
pursuant to rules and procedures established by DTC and its participants. The
Company will not be responsible or liable for such transfers of payments or
for maintaining, supervising or reviewing the records maintained by DTC, its
participants or persons acting through such participants.]
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Note shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT--..........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________ Attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated: ________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without
alteration or enlargement, or any change whatever and must be guaranteed.
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
_________________________________ (Please print or typewrite name and address
of the undersigned)
For this Note to be repaid, the Issuing and Paying Agent must receive at
__________________, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 20 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $__________ or an integral multiple of $l,000 in excess of
$__________) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not
being repaid).
$_______________________ _________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written
Date:________________ upon the face of this Note in every particular,
without alteration or enlargement or any change
whatever.]
[Notes issued in bearer form will contain additional legends and
restrictions on transfer required by the Depositary and by the Internal
Revenue Code and Regulations thereunder, including that required by
Internal Revenue Code Section 163(f)(2)(B)]
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following legend is
applicable. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.*
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF
OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES __
(Floating Rate)
CUSIP 638585 _________
ORIGINAL ISSUE DATE:
STATED MATURITY DATE:
INITIAL INTEREST RATE:
INTEREST RATE BASIS:
INDEX MATURITY FOR INITIAL
INTEREST RATE (IF DIFFERENT):
INDEX MATURITY:
INDEX MATURITY FOR FINAL
INTEREST PAYMENT PERIOD
IF DIFFERENT:
SPREAD:
SPREAD MULTIPLIER:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES:
INTEREST RATE RESET PERIOD:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT:
ADDITIONAL TERMS:
* Applies only if this Note is a Global Security.
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
______________________________________________________________,
or registered assigns, the principal sum of ________________
DOLLARS on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest thereon at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest
Reset Date specified above and thereafter at a rate determined in
accordance with the provisions on the reverse hereof, depending
upon the appropriate Interest Rate Basis and Index Maturity
specified above, until the principal hereof is paid or duly made
available for payment. The Company will pay interest on the
Interest Payment Dates specified above, commencing with the first
Interest Payment Date next succeeding the Original Issue Date
specified above, unless the Original Issue Date occurs between a
Regular Record Date, as defined below, and the next succeeding
Interest Payment Date, in which case commencing on the Interest
Payment Date following the next succeeding Regular Record Date,
and on the Stated Maturity Date shown above (or any Redemption
Date as defined on the reverse hereof or any Optional Repayment
Date with respect to which such option has been exercised, each
such Stated Maturity Date, Redemption Date and Optional Repayment
Date being herein referred to as a "Maturity Date" with respect
to the principal repayable on such date). Interest on this Note
will accrue from the Original Issue Date specified above until
the principal amount is paid and will be computed as hereinafter
described. Interest payable on this Note on any Interest Payment
Date or the Maturity Date will include interest accrued from and
including the next preceding Interest Payment Date in respect of
which interest has been paid or duly provided for or, if no
interest has been paid, from the Original Issue Date specified
above, to but excluding such Interest Payment Date or Maturity
Date, as the case may be; provided, however, that if the Interest
Rate Reset Period with respect to this Note is daily or weekly,
interest payable on any Interest Payment Date or the Maturity
Date will include interest accrued from but excluding the Regular
Record Date through which interest has been paid to and including
the Regular Record Date next preceding such Interest Payment
Date, except that interest payable on any such Maturity Date will
include interest accrued to, but excluding, such Maturity Date.
If any Interest Payment Date falls on a day which is not a
Business Day, as defined below, such Interest Payment Date shall
be the following day that is a Business Day, except that if the
Interest Rate Basis is LIBOR, if such next Business Day falls in
the next succeeding calendar month, such Interest Payment Date
will be the preceding day that is a Business Day; and if the
Maturity Date falls on a day which is not a Business Day,
principal or interest payable with respect to such Maturity Date
will be paid on the next succeeding Business Day with the same
force and effect as if made on such Maturity Date, and no
additional interest shall accrue for the period from and after
such Maturity Date. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject
to certain exceptions, be paid to the person in whose name this
Note (or one or more predecessor Notes evidencing all or a
portion of the same debt as this Note) is registered at the close
of business on the date 15 calendar days prior to such Interest
Payment Date, whether or not a Business Day (the "Regular Record
Date"); provided, however, that the first payment of interest on
any Note with an Original Issue Date, as specified above, between
a Regular Record Date and an Interest Payment Date or on an
Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the person
in whose name this Note is registered at the close of business on
such next succeeding Regular Record Date; and provided, further,
that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof shall be payable. Any such
interest not punctually paid or duly provided for shall be
payable as provided in the Indenture. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, (i) on which
banks in The City of New York, Charlotte, North Carolina or
___________ are not authorized or required by law to be closed
and (ii) if the Interest Rate Basis is LIBOR, is a day on which
dealings in deposits on U.S. dollars are transacted in the London
interbank market.
The principal of and interest on this Note are payable in
immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts at the office or
agency of the Company designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of
the Company, by check mailed to the person entitled thereto at
his address last appearing on the registry books of the Company
relating to the Notes. Notwithstanding the preceding sentence,
payments of principal of and interest payable on the Maturity
Date will be made by wire transfer of immediately available funds
to a designated account maintained in the United States upon (i)
receipt of written notice by the Issuing and Paying Agent from
the holder hereof not less than one Business Day prior to the due
date of such principal and (ii) presentation of this Note to the
Issuing and Paying Agent at NationsBank of Georgia, National
Association, as Issuing and Paying Agent, 600 Peachtree Street,
Suite 900, Atlanta, Georgia 60608 (the "Corporate Trust Office").
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature, this Note shall not
be entitled to any benefit under such Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument
to be duly executed, by manual or facsimile signature, under its
corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:________________________________
[SEAL] Title: Senior Vice President and
Treasurer
ATTEST:
____________________________
Assistant Secretary CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ____________________________
The Bank of New York, as Trustee
By: NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION, as
Authenticating Agent
By:___________________________
Authorized Signatory
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES __
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Company unlimited in aggregate principal amount
(herein called the "Notes") issued and to be issued under an
Indenture dated as of January 1, 1995 (herein called the
"Indenture"), between the Company and The Bank of New York, as
Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Company, the
Trustee and the holders of the Notes, and the terms upon which
the Notes are, and are to be, authenticated and delivered. This
Note is also one of the Notes designated as the Company's
Subordinated Medium-Term Notes, Series __, limited in aggregate
principal amount to $_____________. The Notes may bear different
dates, mature at different times, bear interest at different
rates and vary in such other ways as are provided in the
Indenture.
THE INDEBTEDNESS OF THE COMPANY EVIDENCED BY THE NOTES,
INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON, IS, TO THE
EXTENT AND IN THE MANNER SET FORTH IN THE INDENTURE, SUBORDINATE
AND JUNIOR IN RIGHT OF PAYMENT TO ITS OBLIGATIONS TO HOLDERS OF
SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE, AND EACH HOLDER
OF THE NOTES, BY THE ACCEPTANCE HEREOF, AGREES TO AND SHALL BE
BOUND BY SUCH PROVISIONS OF THE INDENTURE.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the
holder only if Optional Repayment Date(s) are indicated on the
face hereof. IF NO OPTIONAL REPAYMENT DATES ARE SET FORTH ON THE
FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID AT THE OPTION OF THE
HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any Optional
Repayment Date, this Note shall be repayable in whole or in part
in increments of $1,000 at the option of the holder hereof at a
repayment price equal to 100% of the principal amount to be
repaid, together with interest thereon payable to the date of
repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, this Note must be received, with the
form below entitled "Option to Elect Repayment" duly completed,
by the Issuing and Paying Agent at the Corporate Trust Office, or
such other address of which the Company shall from time to time
notify the holders of the Notes, not more than 60 nor less than
30 days prior to an Optional Repayment Date. Exercise of such
repayment option by the holder hereof shall be irrevocable.
[Notes issued in bearer form or payable in a currency other than U.S.
dollars will contain additional provisions relating to payment, payment
currency and Depositary procedure, as well as provisions relating to
United States tax and withholding laws]
This Note may be redeemed at the option of the Company on
any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). IF NO
INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE HEREOF, THIS
NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE COMPANY PRIOR TO
THE STATED MATURITY DATE. On and after the Initial Redemption
Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 at the option
of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this
Note in part only, a new Note for the unredeemed portion hereof
shall be issued in the name of the [Holder] hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Company, the
"Redemption Price" shall initially be the Initial Redemption
Percentage, specified on the face hereof, of the principal amount
of this Note to be redeemed and shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of
the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
Accrued interest hereon shall be calculated by multiplying
the face amount hereof by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest
factor calculated for each day from and including Original Issue
Date, or from but excluding the last date to which interest has
been paid, as the case may be, to and including the date for
which accrued interest is being calculated. The interest factor
(expressed as a decimal) for each such day shall be computed by
dividing the interest rate in effect on such day by 360 or, in
the case of Notes having the Treasury Rate as their Interest Rate
Basis, by the actual number of days in the year.
Except as described below, this Note will bear interest at
the rate determined by reference to the appropriate Interest Rate
Basis and Index Maturity shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread
Multiplier, if any, specified on the face hereof. The interest
rate in effect on each day shall be (a) if such day is an
Interest Reset Date, the interest rate determined as of the
Interest Determination Date (as defined below) pertaining to such
Interest Reset Date or (b) if such day is not an Interest Reset
Date, the interest rate determined as of the Interest
Determination Date pertaining to the next preceding Interest
Reset Date, provided that (i) the interest rate in effect from
the Original Issue Date to the first Interest Reset Date shall be
the Initial Interest Rate specified on the face hereof, and (ii)
the interest rate in effect for the ten calendar days immediately
prior to the Maturity Date shall be the rate in effect on the
tenth calendar day preceding such Maturity Date. If any Interest
Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if the Interest Rate Basis
specified on the face hereof is LIBOR, if such next Business Day
is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. The term
"Final Interest Payment Period" means the period from the final
Interest Reset Date to the Maturity Date.
The Interest Determination Date with respect to any Note
that has as its Interest Rate Basis the CD Rate, Commercial Paper
Rate, the Federal Funds Rate or the Prime Rate will be the second
Business Day preceding the Interest Reset Date. The Interest
Determination Date with respect to LIBOR shall be the second
London Banking Day (as defined below) preceding the Interest
Reset Date. The Interest Determination Date with respect to the
Treasury Rate shall be the day of the week in which the Interest
Reset Date falls on which Treasury bills of the Index Maturity
specified on the face hereof normally would be auctioned;
provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding the Interest
Reset Date, the related Interest Determination Date shall be such
preceding Friday; [and provided, further, that if an auction
shall fall on any Interest Reset Date then the Interest Reset
Date shall instead be the first Business Day following such
auction.]
The "Calculation Date" pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the
Business Day next preceding the applicable Interest Payment Date
or Maturity Date, as the case may be.
All percentages resulting from any calculation on the Notes
will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the
Notes will be rounded to the nearest cent (with one-half cent
being rounded upward).
Determination of CD Rate. CD Rate means, with respect to an
Interest Determination Date (a "CD Rate Interest Determination
Date"), the rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit having the Index Maturity
specified on the face hereof, as such rate is published by the
Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") in "Statistical Release H.15(519), Selected
Interest Rates," or any successor publication of the Federal
Reserve Board ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 4:00 P.M., New York City
time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate
Interest Determination Date for negotiable certificates of
deposit of the Index Maturity specified on the face hereof, as
published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If such rate is not published in
either H.15(519) or the Composite Quotations by 4:00 P.M., New
York City time, on such Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent
(after consultation with the Company) for negotiable certificates
of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the
Index Maturity specified on the face hereof in denominations of
$5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth
above, the CD Rate for such CD Rate Interest Determination Date
will be the CD Rate in effect on such CD Rate Interest
Determination Date.
Determination of Commercial Paper Rate. The Commercial
Paper Rate means, with respect to an Interest Determination Date
(a "Commercial Paper Rate Interest Determination Date"), the
Money Market Yield (as defined below) of the rate on such date
for commercial paper having the Index Maturity specified on the
face hereof as published in H.15(519) under the heading
"Commercial Paper." In the event such rate is not published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, the
Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity specified on the face
hereof as published in Composite Quotations under the heading
"Commercial Paper." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on such Calculation Date, the Commercial Paper Rate for
that Commercial Paper Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00
A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper
in The City of New York selected by the Calculation Agent (after
consultation with the Company) for commercial paper of the Index
Maturity specified on the face hereof placed for an industrial
issuer whose bond rating is "AA", or the equivalent, by a
nationally recognized statistical rating agency; provided,
however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate with respect to such Commercial Paper Rate
Interest Determination Date will be the Commercial Paper Rate
then in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be the yield (expressed as a
percentage rounded to the nearest one ten-thousandth of a
percent, with five one hundred-thousandths of a percent rounded
upward) calculated in accordance with the following formula:
Money Market Yield = D x 360
360 - (D x M) x 100
where "D" refers to the per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and
"M" refers to the actual number of days in the interest period
for which interest is being calculated.
Determination of Federal Funds Rate. The Federal Funds Rate
means, with respect to an Interest Determination Date (a "Federal
Funds Rate Interest Determination Date"), the rate on that date
for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)." If H.15(519) is not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds Rate
Interest Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such rate
is not yet published in either H.15(519) or Composite Quotations
by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Rate Interest Determination
Date, the Federal Funds Rate for such Federal Funds Rate Interest
Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds as of 9:00 A.M., New York
City time, on such Federal Funds Rate Interest Determination Date
quoted by each of three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation
Agent (after consultation with the Company); provided, however,
that if fewer than three such brokers are so quoting such rates,
the Federal Funds Rate with respect to such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate then
in effect on such Federal Funds Rate Interest Determination Date.
Determination of LIBOR. LIBOR means the rate determined by
the Calculation Agent in accordance with the following
provisions:
(i) With respect to an Interest Determination Date (a
"LIBOR Interest Determination Date"), LIBOR will be "LIBOR
Telerate" unless "LIBOR Reuters" is specified in the
applicable pricing supplement or LIBOR Telerate is not
available. "LIBOR Telerate" is the rate for deposits in the
LIBOR Currency (as defined below) having the Index Maturity
specified on the face hereof that appears on the Designated
LIBOR Page (as defined below) specified on the face hereof
as of 11:00 A.M. London time, on that LIBOR Interest
Determination Date. "LIBOR Reuters" is that rate which is
the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page by its terms provides only
for a single rate, in which case such single rate shall be
used) for deposits in the LIBOR Currency having the Index
Maturity specified on the face hereof that appear on the
Designated LIBOR Page specified on the face hereof as of
11:00 A.M. London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such
Designated LIBOR Page. If LIBOR cannot be determined under
this clause (i), LIBOR in respect of the related LIBOR
Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii)
below.
(ii) With respect to a LIBOR Interest Determination
Date on which LIBOR cannot be determined under clause (i)
above, the Calculation Agent will request the principal
London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation
Agent (after consultation with the Company) to provide the
Calculation Agent with its offered quotation for deposits in
the LIBOR Currency for the period of the Index Maturity
specified on the face hereof to prime banks in the London
interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in
such LIBOR Currency in such market at such time. If at
least two such quotations are provided, LIBOR determined on
such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two such
quotations are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M. in the applicable
Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent
(after consultation with the Company) for loans in the LIBOR
Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal
amount that is representative for a single transaction in
such LIBOR Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest determination Date will be
LIBOR then in effect on such LIBOR Interest Determination
Date.
"LIBOR Currency" means the currency (including composite
currencies) specified on the face hereof for which LIBOR shall be
calculated. If no such currency is specified on the face hereof,
the LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters"
is specified on the face hereof, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the
London interbank rates of major banks for the applicable LIBOR
Currency, or (b) if "LIBOR Telerate" is specified on the face
hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks
for the applicable LIBOR Currency. If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR for the
applicable LIBOR Currency will be determined as if LIBOR Reuters
(and, if the U.S. dollar is the LIBOR Currency, LIBO Page) had
been specified.
"Principal Financial Center" shall generally be the capital
city of the country of the specified LIBOR Currency, except that
with respect to U.S. dollars, Deutsche Marks and ECUs, the
Principal Financial Center shall be The City of New York,
Frankfurt and Luxembourg, respectively.
Determination of Prime Rate. Prime Rate means, with respect
to an Interest Determination Date (a "Prime Rate Interest
Determination Date"), the rate set forth on such date in
H.15(519) under the heading "Bank Prime Loan," or if not so
published prior to 9:00 A.M. New York City time, on the
Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the
Reuters Screen NYMF Page (as defined below) as such bank's prime
rate or base lending rates as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but
more than one such rate appear on the Reuters Screen NYMF Page
for the Prime Rate Interest Determination Date, the Prime Rate
will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rates, quoted on the basis of the
actual number of days in the year divided by a 360-day year, as
of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City
of New York as selected by the Calculation Agent (after
consultation with the Company). If fewer than two such
quotations are provided, the Prime Rate shall be determined by
the Calculation Agent as of the close of business on the Prime
Rate Interest Determination Date, on the basis of the prime
rates, as of the close of business on such date, furnished in The
City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of
the United States, or any State thereof, having total equity
capital of at least $500 million and being subject to supervision
or examination by Federal or State authority, selected by the
Calculation Agent (after consultation with the Company) to
provide such rate or rates; provided, however, that if the banks
selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate for such Prime Rate Interest
Determination Date will be the Prime Rate then in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as
page "NYMF" on the Reuters Monitor Money Rates Service (or such
other page as may replace the NYMF page on that service for the
purpose of displaying prime rates or base lending rates of major
United States banks).
Determination of Treasury Rate. Treasury Rate means, with
respect to an Interest Determination Date (a "Treasury Rate
Interest Determination Date"), the rate for the auction held on
such Treasury Rate Interest Determination Date of direct
obligations of the United States ("Treasury Bills") having the
Index Maturity specified on the face hereof, as published in
H.15(519) under the heading "U.S. Government Securities --
Treasury Bills -- auction average (investment)." If such rate is
not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Interest
Determination Date, the Treasury Rate will be the auction average
rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) on
such Treasury Rate Interest Determination Date as otherwise
announced by the United States Department of the Treasury. In
the event that the results of the auction of Treasury bills
having the Index Maturity specified on the face hereof are not
reported as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held on such Treasury
Rate Interest Determination Date, then the Treasury Rate for such
Treasury Rate Interest Determination Date shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent (after consultation with the Company), for the issue of
Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Rate Interest Determination Date will be
the Treasury Rate then in effect on such Treasury Rate Interest
Determination Date.
[Include provisions for additional
interest rate bases]
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law,
as the same may be modified by United States law of general
application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then
in effect and, if determined, the interest rate which will become
effective as of the next Interest Reset Date.
If an Event of Default (defined in the Indenture as certain
events involving the bankruptcy of the Company) shall occur with
respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration
provided in the Indenture in case of a default in the payment of
interest or the performance of any other covenant by the Company.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes under the Indenture at any time by the
Company with the consent of the holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding and
all other Securities then outstanding under the Indenture and
affected by such amendment and modification. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all such
Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemented thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for issue hereof, expressly
waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the registry books of the Company relating to the
Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company designated by it pursuant
to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes,
of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
[Bearer Notes will contain additional conforming provisions]
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer of
this Note, the Company, the Issuing and Paying Agent and any
agent of the Company or the Issuing and Paying Agent may treat
the [Person] in whose name this Note is registered as the
absolute owner hereof for the purpose of receiving payment as
herein provided and for all other purposes, whether or not this
Note be overdue, and neither the Company, the Issuing and Paying
Agent nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The
Notes are being issued by means of a book-entry system with no
physical distribution of certificates to be made except as
provided in the Indenture. The book-entry system maintained by
Depository Trust Company ("DTC") will evidence ownership of the
Notes, with transfers of ownership effected on the records of DTC
and its participants pursuant to rules and procedures established
by DTC and its participants. The Company will recognize Cede &
Co., as nominee of DTC, while the registered Owner of the Notes,
as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal
and interest to participants of DTC will be the responsibility of
DTC, and transfer of principal and interest to beneficial owners
of the Notes by participants of DTC will be the responsibility of
such participants and other nominees of such beneficial owners.
So long as the book-entry system is in effect, the selection of
any Notes to be redeemed will be determined by DTC pursuant to
rules and procedures established by DTC and its participants.
The Company will not be responsible or liable for such transfers
of payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons acting
through such participants.]
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the interim Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM--as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--.............Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the
above list.
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ____________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________
Attorney to transfer said Note on the books of the Company, with
full power of substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular, without alteration or enlargement, or any change
whatever and must be guaranteed.
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Company to repay this Note (or portion hereof
specified below) pursuant to its terms at a price equal to the
principal amount hereof together with interest to the repayment
date, to the undersigned, at ________________________________
_____________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Issuing and Paying agent
must receive at ______________, or at such other place or places
of which the Company shall from time to time notify the Holder of
this Note, not more than 60 nor less than 20 days prior to an
Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to
be repaid, specify the portion hereof (which shall be in
increments of $1,000) which the Holder elects to have repaid and
specify the denomination or denominations (which shall be
$__________ or an integral multiple Of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not
being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date:_______________ correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
[FORM OF BEARER SECURITY AND
FORM OF COUPON]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
NEITHER THIS SECURITY NOR ANY PORTION HEREOF MAY BE IN CONNECTION
WITH ITS ORIGINAL ISSUANCE BE OFFERED FOR SALE OR RESALE, SOLD OR RESOLD,
OR DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR ITS
POSSESSIONS, OR TO A UNITED STATES PERSON, UNLESS SUCH UNITED STATES PERSON
IS A FINANCIAL INSTITUTION AS DEFINED IN SECTION 1.165-12(c)(1)(v) OF THE
UNITED STATES TREASURY REGULATIONS PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A CUSTOMER, WHICH FINANCIAL INSTITUTION, AS A
CONDITION OF THE PURCHASE, AGREES TO PROVIDE ON DELIVERY OF THE OBLIGATION
(OR ON ISSUANCE, IF THE OBLIGATION IS NOT IN DEFINITIVE FORM) THE
CERTIFICATE REQUIRED UNDER SECTION 1.163(c)(2)(i)(B)(4) OF THE UNITED STATES
TREASURY REGULATIONS. "UNITED STATES PERSON" MEANS ANY CITIZEN OR RESIDENT
OF THE UNITED STATES, ANY CORPORATION, PARTNERSHIP OR OTHER
ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES
AND ANY ESTATE OR TRUST THE INCOME OF WHICH IS SUBJECT TO UNITED STATES
FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE.
NUMBER B-______ [U.S.]$_________
THIS NOTE IS NOT A SAVINGS ACCOUNT
OR A DEPOSIT, IS NOT AN OBLIGATION
OF OR GUARANTEED BY ANY BANKING OR
NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
______% _______________ NOTE, DUE ____
NATIONSBANK CORPORATION, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to the bearer
upon presentation and surrender of this Note, the principal sum
of _________________________ [United States DOLLARS] on
_____________________, 19___, and to pay interest on said
principal sum, [semi-annually in arrears on ____________________
and ___________________ of each year,] at the [rate of ___% per
annum/variable interest rate provisions], from the date hereof.
The principal of and interest on this Note are payable [in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts, subject to any laws or regulations applicable thereto and
to the right of the Company (limited as provided in the
Indenture) to rescind the designation of any paying agent, at the
[main] offices of __________ in __________, __________ in
__________, __________ in __________, __________ in __________
and __________ in __________, or at such other offices or
agencies outside the United States of America (including the
States and the District of Columbia) and its possessions
(including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and Northern Mariana Islands) (the "United
States") as the Company may designate, by [United States dollar]
check drawn on, or transfer to a [United States dollar] account
maintained by the payee with, a bank located outside the United
States (so long as the applicable paying agent has received
proper transfer instructions in writing)]. Interest on this Note
shall be payable only upon presentation and surrender at such an
office or agency of the interest coupons hereto attached as they
severally mature. To the extent necessary under the taxation
laws of the United States or any official application or
interpretation of the taxation laws of the United States for such
payments to be treated as having been made outside the United
States, no such check shall be mailed by any paying agent to any
address in the United States and no transfer of funds shall be
made to an account maintained in the United States [if the Note
is denominated and payable in United States dollars, insert __;
provided, however, that payment of principal of [(and premium, if
any)] and interest of this Note (including any additional amounts
which may be payable as provided below) shall be made at the
office of the Company's paying agent in the Borough of Manhattan,
The City of New York if (but only if) payment in United States
dollars of the full amount of such principal, interest or
additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose of
the Company in accordance with the Indenture is illegal or
effectively precluded by exchange controls or other similar
restrictions.] Any interest not punctually paid or duly provided
for shall be payable as provided in such Indenture.
[If Securities of the series are to be offered to United
States Aliens, insert The Company will pay to the holder of
this Note or any related coupon who is a United States Alien (as
defined below) such additional amounts as may be necessary in
order that every net payment of the principal of and interest on
this Note, after deduction or withholding for or on account of
any present or future tax, assessment or other governmental
charge imposed by the United States (as defined below) or any
political subdivision or taxing authority thereof or therein upon
or as a result of such payment, will not be less than the amount
provided for in this Note or in such coupon to be then due and
payable; provided, however, that the Company shall not be
required to make any payment of additional amounts for or on
account of:
(a) any tax, assessment or other governmental charge
which would not have been imposed but for (i) the existence
of any present or former connection between such holder (or
between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such holder, if
such holder is an estate, trust, partnership or corporation)
and the United States, including, without limitation, such
holder (or such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a citizen or
resident thereof or being or having been present or engaged
in trade or business therein or having or having had a
permanent establishment therein or (ii) the presentation by
the holder of such Note for payment on a date more than 10
days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer,
personal property tax or similar tax, assessment or other
governmental charge;
(c) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as
a personal holding company or foreign personal holding
company with respect to the United States or as a corporation
which accumulates earnings to avoid United States federal
income tax;
(d) any tax, assessment or other governmental charge
which is payable otherwise than by withholding from payments
of principal of or interest on, such Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment
of principal of or interest on, the Notes, if such payment
can be made without such withholding by any of the other
paying agents in Western Europe;
(f) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to
comply with certification, information, documentation or
other reporting requirements concerning the nationality,
residence, identity or connections with the United States of
the holder or beneficial owner of such Note or any related
coupon, if such compliance is required by statute or by
regulation of the United States Treasury Department as a pre-
condition to relief or exemption from such tax, assessment or
other governmental charge;
(g) any tax, assessment or other governmental charge
imposed on interest received by (i) a 10% shareholder (as
defined in Section 871(h)(3)(B) of the United States Internal
Revenue Code of 1986, as amended (herein called the "Code"),
and the regulations that may be promulgated thereunder) of
the Company or (ii) a controlled foreign corporation within
the meaning of the Code; or
(h) any combination of items (a), (b), (c), (d), (e), (f)
and (g);
nor will additional amounts be paid with respect to any payment
of principal of or interest on this Note to any holder which is a
United States Alien who is a fiduciary or partnership or other
than the sole beneficial owner of any such payment to the extent
that a beneficiary or settlor with respect to such fiduciary, a
member of such a partnership or the beneficial owner would not
have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the holder
of this Note or any related coupon. Except as specifically
provided in the Notes of this series, the Company shall not be
required to make any payment with respect to any tax, assessment
or governmental charge imposed by any government or any political
subdivision thereof or taxing authority therein. Whenever in
this Note there is mentioned, in any context, the payment of the
principal of or interest on, or in respect of, a Note or any
related coupon, such mention shall be deemed to include mention
of the payment of additional amounts provided for herein to the
extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions
hereof and express mention of the payment of additional amounts
(if applicable) in any provisions hereof shall not be construed
as excluding additional amounts in those provisions hereof where
such express mention is not made. The term "United States Alien"
means any person who, for United States federal income tax
purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or
trust or a foreign partnership to the extent that one or more of
its members is, for United States federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.]
[Notwithstanding the foregoing, if and so long as a
certification, information, documentation or other reporting
requirement with respect to any and all Notes of this series
referred to in the [___] paragraph on the reverse hereof would be
fully satisfied by payment of a withholding tax, backup
withholding tax or similar charge, the Company may elect to have
the provisions of this paragraph apply in lieu of the provisions
of such paragraph, which election may be stated in the
Determination Notice (as defined in such [__] paragraph). In
such event, the Company will pay as additional amounts with
respect to any Note of this series that the Company determines is
subject to such requirement such amounts as may be necessary so
that every net payment made following the effective date of such
requirement outside the United States by the Company or any of
its paying agents of principal or interest due in respect of any
Bearer Security or any coupon 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 withholding tax, backup withholding tax or similar charge
(other than a withholding tax, backup withholding tax or similar
charge which (a) would not be applicable to a payment made to a
custodian, nominee or other agent of the beneficial owner or
which can be satisfied by such a custodian, nominee or other
agent certifying to the effect that such beneficial owner is a
United States Alien; provided, however, in each case that payment
by such custodian, nominee or agent to such beneficial owner is
not otherwise subject to any requirement referred to in this
paragraph, (b) is applicable only to payment by a custodian,
nominee or other agent of the beneficial owner to such beneficial
owner, (c) would not be applicable to a payment made by any other
paying agent of the Company in Western Europe, or (d) is imposed
as a result of the presentation of such Bearer Security or coupon
for payment on a date more than 10 days after the date on which
such payment becomes due and payable or the date on which payment
thereof is duly provided for, whichever occurs later), will not
be less than the amount provided for in such Bearer Security or
coupon to be then due and payable.]
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee by manual signature,
neither this Note nor any related coupon shall not be entitled to
any benefit under such Indenture, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by manual or facsimile signature under its
corporate seal or a facsimile thereof and coupons bearing the
facsimile signature to be annexed hereto.
NATIONSBANK CORPORATION,
Attest:
By:
Secretary Chairman and
Chief Executive Officer
[CORPORATE SEAL]
Dated
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
,
as Trustee,
[By:
as Authenticating Agent]
By:
Authorized Signatory
[Reverse Side of Note]
NATIONSBANK CORPORATION
______% __________ NOTE, DUE __________
This Note is one of a duly authorized issue of Securities of
the Company unlimited in aggregate principal amount (herein
called the "Notes") issued and to be issued under an Indenture
dated as of __________ (herein called the "Indenture"), between
the Company and __________ (herein called the "Trustee," which
term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the holders of the
Notes [and any coupons appertaining thereto], and the terms upon
which the Notes are, and are to be, authenticated and delivered.
This Note is also one of the Notes designated as the [_____%
___________] Notes, due __________ limited in aggregate principal
amount to [U.S.] $__________. The Notes are issuable as Bearer
Securities, with interest coupons attached, in the denomination
of [U.S. $__________], and as Registered Securities, without
coupons, in denominations of [U.S. $__________] and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Bearer Securities and
Registered Securities of this series are exchangeable for a like
aggregate principal amount of Registered Securities of this
series and of like tenor and of any authorized denominations, as
requested by the holder surrendering the same, upon surrender of
the Note or Notes to be exchanged, with all unmatured coupons and
all matured coupons in default thereto appertaining, at any
office or agency described below, provided, however, that Bearer
Securities surrendered in exchange for Registered Securities
between a Record Date and the relevant Interest Payment Date
shall be surrendered without the coupon relating to such Interest
Payment Date, where Registered Securities of this series may be
presented for registration of transfer [Registered Securities,
including Registered Securities received in exchange for Bearer
Securities, may not be exchanged for Bearer Securities]].
[If Securities of the series are to be offered to United
States Aliens, insert The Note may be redeemed, as a whole but
not in part, at the option of the Company, at a redemption price
equal to 100% of their principal amount, together with interest
accrued to the date fixed for redemption, if, as a result of any
amendment to, or change in, the laws (or any regulations or
rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
affecting taxation, or any amendment to or change in an official
position regarding the application or interpretation of such
laws, regulations or rulings, which amendment or change is
effective on or after __________, 19__, the Company will become
obligated to pay additional amounts (as described on the face
hereof) on the next succeeding interest payment date, provided
that such obligation to pay additional amounts cannot be avoided
by the use of reasonable measures available to the Company;
provided, however, that in the opinion of the Company, which
opinion shall be rendered in good faith, such measures need not
be used if they have or will have a material adverse impact on
the conduct of its business; provided further, however, that (a)
no notice of such redemption may be given earlier than 90 days
prior to the earliest date on which the Company would be
obligated to pay such additional amounts were a payment in
respect of the Notes then due, and (b) at the time notice of such
redemption is given, such obligation to pay such additional
amounts remains in effect. Immediately prior to the giving of
any notice of redemption pursuant to this paragraph, the Company
shall deliver to the Trustee a 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 an opinion of
counsel to the Company to such effect based on such statement of
facts.]
[If the Securities of the series are issuable as Bearer
Securities and if applicable*, insert In addition, if the
Company determines that any payment made outside the United
States and its possessions by the Company or any of its paying
agents of the full amount of principal or interest due with
respect to any Bearer Security or coupon would, under any present
or future laws or regulations of the United States affecting
taxation or otherwise, be subject to any certificate,
information, documentation 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
Bearer Security or coupon who is a United States Alien (as
defined herein) (other than such a requirement (a) which would
not be applicable to a payment made by the Company or any one of
its paying agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, or
(b) which can be satisfied by the custodian, nominee or other
agent certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of
such beneficial owner is not otherwise subject to any such
requirement or (c) which would not be applicable to a payment
made to any other paying agent in Western Europe), the Company at
its election will either (x) redeem the Notes, as a whole but not
in part, at a redemption price equal to 100% of their principal
amount, together with interest accrued to the date fixed for
redemption, or (y) if and so long as any such certification,
information, documentation or other reporting requirement would
*Generally this provision will only be applicable if the
Securities of the series bear interest at a fixed rate.
be fully satisfied by payment of a backup withholding tax or
similar charge, pay to the holders of Bearer Securities who are
United States Aliens certain additional amounts specified in the
Bearer Securities of this series. The Company will make such
determination and election and notify the Trustee thereof as soon
as practicable, and the Trustee will promptly give notice of such
determination in the manner provided below (the "Determination
Notice"), in each case stating the effective date of such
certification, information, documentation or other reporting
requirement, whether the Company will redeem the Notes or will
pay to the holders of Bearer Securities who are United States
Aliens the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which the
redemption of the Notes must take place. If the Company elects
to redeem the Notes, such redemption shall take place on such
date, not later than one year after publication of the
Determination Notice, as the Company elects by notice to the
Trustee at least 75 days before such date, unless shorter notice
is acceptable to the Trustee. Upon receipt of notice from the
Company as to the date of redemption, the Trustee shall cause
notice thereof to be duly given in the manner provided below.
Notwithstanding the foregoing, the Company will not so redeem the
Notes if the Company subsequently determines, not less than 30
days prior to the date fixed for redemption, that subsequent
payments on Notes would not be subject to any such requirement,
in which case the Company will promptly notify the Trustee, which
will promptly give notice of that determination in the manner
provided below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts to
the holders of Bearer Securities who are United States Aliens,
and as long as the Company is obligated to pay such additional
amounts to such holders, the Company may subsequently redeem the
Notes, at any time, as a whole but not in part, at a redemption
price equal to 100% of their principal amount, together with
interest accrued to the date fixed for redemption, including any
additional amounts required to be paid but without reduction for
applicable United States of America withholding taxes.]
With respect to any redemption made pursuant to the terms of
this Note, no payment in respect of the portion of the redemption
price which represents accrued interest thereon shall be made at
any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer
to an account maintained with a bank located in the United
States.
[Insert Additional Provisions Relating to Determination and
Payment of Interest]
[The indebtedness of the Company evidenced by the Notes,
including the principal thereof and interest thereon, is, to the
extent and in the manner set forth in the Indenture, subordinate
and junior in right of payment to its obligations to holders of
Senior Indebtedness, as defined in the Indenture, and each holder
of the Notes, by the acceptance thereof, agrees to and shall be
bound by such provisions of the Indenture.]
[[Except as otherwise provided herein, the Notes are not
subject to any sinking fund and are not subject to redemption at
the option of the Company prior to maturity.]
[The provisions of Article Fourteen of the Indenture do not
apply to Securities of this series.]
Notice of redemption will be given by publication in an
Authorized Newspaper in The City of New York and, if the Notes of
this series are then listed on [The International Stock Exchange
of the United Kingdom and the Republic of Ireland Limited] [the
Luxembourg stock Exchange] [or] any [other] stock exchange
located outside the United States and such stock exchange shall
so require, in [London] [Luxembourg] [or] in any [other] required
city outside the United States or, if not practicable, elsewhere
in Europe, [and by mail to Holders of Registered Securities,] not
less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture.
Title to Bearer Securities and coupons shall pass by
delivery. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register of the Company relating to
the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company at
_________________ designated by it pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee or
the Security Registrar duly executed by, the registered holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new [Registered Securities/Notes], of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
No service charge will be made for any such registration of
transfer or exchange of any Note, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
[If the Note is payable in a currency other than U.S. Dollars
(the "Specified Currency"), the Note may contain certain
provisions relating to the calculation and payment of the
Specified Currency, including:
(1) In the event of an official redenomination of the
Specified Currency (including any Specified Currency that
is a composite currency) the obligation of the Company
with respect to payments on Notes denominated in the
Specified Currency shall, in all cases be deemed
immediately following such redenomination to provide for
the payment of that amount of redenominated currency
representing the amount for such obligations immediately
before such redenomination.
(2) If payment on a Note is required to be made in a
Specified Currency and such currency is unavailable due
to the imposition of exchange controls or other
circumstances beyond the Company's control, or is no
longer used by the government of the country issuing such
currency for the settlement of transactions by public
institutions of or within the international banking
community, then all payments due on such date with
respect to such Note shall be made in U.S. dollars until
such currency is again available or so used. The amount
so payable on any date in such foreign currency shall be
converted into U.S. dollars on the basis of the Market
Exchange Rate (hereinafter defined) on the last date such
Specified Currency was available. The "Market Exchange
Rate" with respect to any currency other than U.S.
dollars means, for any day, the noon dollar buying rate
in the City of New York on such day for cable transfers
of such currency as published by the Federal Reserve Bank
of New York, or, if such rate is not published for such
day, the equivalent rate as determined by the Paying
Agent.
(3) If the official unit of any component currency is
altered by way of combination or subdivision, the number
of units of that currency as a component shall be divided
or multiplied in the same proportion. If two or more
component currencies are consolidated into a single
currency, the amounts of those currencies as components
shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated
component currencies expressed in such single currency.
If any component currency is divided into two or more
currencies, the amount of the original component currency
as a component shall be replaced by the amounts of such
two or more currencies having an aggregate value on the
date of division equal to the amount of the former
component currency immediately before such division. Any
payment required to be made on Notes denominated in a
Specified Currency other than U.S. dollars which is
instead made in U.S. dollars under the circumstances
described above will not constitute a default under the
Indenture.]
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of a Bearer Security and any related
coupon and prior to due presentment for registration of transfer
of this Note, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name this
Note is registered as the absolute owner hereof for the purpose
of receiving payment as herein provided and for all other
purposes, whether or not this Note or such coupon be overdue, and
neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
If an Event of Default (defined in the Indenture as [certain
events involving the bankruptcy of the Company]) shall occur with
respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration
provided in the Indenture in case of a default in the payment of
interest or the performance of any other covenant by the Company.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
holders of the Notes [and any related coupons] under the
Indenture at any time by the Company with the consent of the
holders of 66-2/3% in aggregate principal amount of the Notes
then outstanding and all other Securities then outstanding issued
under the Indenture and affected by such amendment and
modification. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the
Notes then outstanding and all other Securities then outstanding
issued under the Indenture and affected thereby, on behalf of the
holders of all such Securities and any related coupons, to waive
compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and any related coupon and of any
Note issued in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and interest [(including any additional amounts, as
described herein)] on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly
waived and released.
The Notes of this series shall be dated the date of their
authentication.
[If the Notes are issuable as Bearer Securities, insert The
Indenture, the Notes and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the
State of New York.]
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
__________
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above
list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code, must be
printed or typewritten.)
the within
Note, and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever and must be guaranteed.
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
Post Office Box 31247
Charlotte, North Carolina 28231
Telephone 704/343-2000
Telecopier 704/334-8467
February 1, 1995
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Re: Registration Statement on Form S-3 filed on February 1, 1995
with respect to $3,000,000,000 Aggregate Principal Amount of
Debt Securities, Preferred Stock and Common Stock
Gentlemen:
We have acted as counsel to NationsBank Corporation (the
"Corporation") in connection with the registration by the
Corporation of (A) up to $3,000,000,000 aggregate principal
amount of its (i) unsecured debt securities (the "Debt
Securities"), which may be either senior or subordinated, (ii)
shares of its preferred stock (the "Preferred Stock"), which may
be represented by depositary shares (the "Depositary Shares"),
and (iii) shares of its common stock (the "Common Stock" and,
together with the Debt Securities, Preferred Stock and Depositary
Shares, the "Securities") and (B) an indeterminate amount of
Securities that may be issued upon conversion of Debt Securities,
Preferred Stock or Depositary Shares, as set forth in the
Registration Statement on Form S-3 (the "Registration Statement")
that is being filed on the date hereof with the Securities and
Exchange Commission by the Corporation pursuant to the Securities
Act of 1933, as amended. This opinion letter is Exhibit 5.1 to
the Registration Statement.
The Securities are to be issued, separately or together, in
one or more series and are to be sold from time to time as set
forth in the Registration Statement, the Prospectuses contained
therein (each, a "Prospectus") and any amendments or supplements
thereto.
We have relied upon an officer's certificate as to corporate
action heretofore taken with respect to the Securities.
Based on the foregoing, we are of the opinion that: when (1)
the Registration Statement shall have been declared effective by
order of the Securities and Exchange Commission, (2) the terms of
any class or series of such Securities have been authorized by
appropriate corporate action of the Corporation and (3) such
<PAGE>
Securities have been issued and sold upon the terms and
conditions set forth in the Registration Statement, the
applicable Prospectus and the applicable supplement to such
Prospectus, then (a) the Debt Securities will be validly
authorized and issued and binding obligations of the Corporation,
and (b) the shares of the Preferred Stock and Common Stock will
be legally issued, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement
and in each of the Prospectuses as attorneys who passed upon the
legality of the Securities and to the filing of a copy of this
opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
SMITH HELMS MULLISS & MOORE, L.L.P.
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
NATIONSBANK CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
Year Ended
December 31
-------------------------------------------------------
1994 1993 1992 1991 1990
---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits
- ------------------------------
Income before taxes......................... $2,554,778 $1,991,103 $1,396,213 $ 108,524 $ 625,467
Equity in undistributed earnings
of unconsolidated subsidiaries............ (2,604) (4,756) (1,426) (1,114) (668)
Fixed charges:
Interest expense (including
capitalized interest)................ 2,895,569 1,420,800 915,880 1,290,755 1,851,513
Amortization of debt discount and
appropriate issuance costs........... 8,194 6,377 3,000 2,093 2,872
1/3 of net rent expense................ 114,414 95,786 90,667 81,909 66,195
---------- ---------- ---------- ---------- ----------
Total fixed charges......................... 3,018,177 1,522,963 1,009,547 1,374,757 1,920,580
Earnings (excluding capitalized interest)... $5,570,351 $3,509,310 $2,398,329 $1,470,621 $2,533,093
========== ========== ========== ========== ==========
Fixed charges............................... $3,018,177 $1,522,963 $1,009,547 $1,374,757 $1,920,580
========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges.......... 1.85 2.30 2.38 1.07 1.32
Including Interest on Deposits
- ------------------------------
Income before taxes......................... $2,554,778 $1,991,103 $1,396,213 $ 108,524 $ 625,467
Equity in undistributed earnings
of unconsolidated subsidiaries............ (2,604) (4,756) (1,426) (1,114) (668)
Fixed charges:
Interest expense (including
capitalized interest)................ 5,310,419 3,570,079 3,687,650 5,611,057 6,683,262
Amortization of debt discount and
appropriate issuance costs........... 8,194 6,377 3,000 2,093 2,872
1/3 of net rent expense................ 114,414 95,786 90,667 81,909 66,195
---------- ---------- ---------- ---------- ----------
Total fixed charges......................... 5,433,027 3,672,242 3,781,317 5,695,059 6,752,329
Earnings (excluding capitalized interest)... $7,985,201 $5,658,589 $5,170,099 $5,790,923 $7,364,842
========== ========== ========== ========== ==========
Fixed charges............................... $5,433,027 $3,672,242 $3,781,317 $5,695,059 $6,752,329
========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges.......... 1.47 1.54 1.37 1.02 1.09
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NATIONSBANK CORPORATION
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Year Ended
December 31
-------------------------------------------------------
1994 1993 1992 1991 1990
---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits
- ------------------------------
Income before taxes......................... $2,554,778 $1,991,103 $1,396,213 $ 108,524 $ 625,467
Equity in undistributed earnings
of unconsolidated subsidiaries............ (2,604) (4,756) (1,426) (1,114) (668)
Fixed charges:
Interest expense (including
capitalized interest)................ 2,895,569 1,420,800 915,880 1,290,755 1,851,513
Amortization of debt discount and
appropriate issuance costs........... 8,194 6,377 3,000 2,093 2,872
1/3 of net rent expense................ 114,414 95,786 90,667 81,909 66,195
---------- ---------- ---------- ---------- ----------
Total fixed charges......................... 3,018,177 1,522,963 1,009,547 1,374,757 1,920,580
Preferred dividend requirements............. 14,796 15,737 29,260 30,775 37,979
Earnings (excluding capitalized interest)... $5,570,351 $3,509,310 $2,398,329 $1,470,621 $2,533,093
========== ========== ========== ========== ==========
Fixed charges............................... $3,032,973 $1,538,700 $1,038,807 $1,405,532 $1,958,559
========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges.......... 1.84 2.28 2.31 1.05 1.29
Including Interest on Deposits
- ------------------------------
Income before taxes......................... $2,554,778 $1,991,103 $1,396,213 $ 108,524 $ 625,467
Equity in undistributed earnings
of unconsolidated subsidiaries............ (2,604) (4,756) (1,426) (1,114) (668)
Fixed charges:
Interest expense (including
capitalized interest)................ 5,310,419 3,570,079 3,687,650 5,611,057 6,683,262
Amortization of debt discount and
appropriate issuance costs........... 8,194 6,377 3,000 2,093 2,872
1/3 of net rent expense................ 114,414 95,786 90,667 81,909 66,195
---------- ---------- ---------- ---------- ----------
Total fixed charges......................... 5,433,027 3,672,242 3,781,317 5,695,059 6,752,329
Preferred dividend requirements............. 14,796 15,737 29,260 30,775 37,979
Earnings (excluding capitalized interest)... $7,985,201 $5,658,589 $5,170,099 $5,790,923 $7,364,842
========== ========== ========== ========== ==========
Fixed charges............................... $5,447,823 $3,687,979 $3,810,577 $5,725,834 $6,790,308
========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges.......... 1.47 1.53 1.36 1.01 1.08
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of NationsBank
Corporation of our report dated January 14, 1994, which appears on page 57 of
the 1993 Annual Report to Shareholders of NationsBank Corporation, which is
incorporated by reference in NationsBank Corporation's Annual Report on Form
10-K for the year ended December 31, 1993. We also consent to the reference to
us under the heading "EXPERTS" in such Prospectus.
PRICE WATERHOUSE LLP
Charlotte, North Carolina
January 30, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-3) and related Prospectuses of NationsBank Corporation for the registration of
$3,000,000,000 of debt securities, preferred stock, depository shares and common
stock of our report dated February 18, 1993, except for Note S, as to which the
date is March 2, 1993, with respect to the consolidated financial statements of
MNC Financial, Inc. included in Form 8-K/A, dated April 9, 1993, Amendment No. 1
to Form 8-K dated February 18, 1993, of NationsBank Corporation, filed with the
Securities and Exchange Commission.
ERNST & YOUNG, LLP
Baltimore, Maryland
January 30, 1995
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of NationsBank Corporation, and
the several undersigned Officers and Directors thereof whose signatures appear
below, hereby makes, constitutes and appoints Paul J. Polking and Charles M.
Berger, and each of them acting individually, its and his true and lawful
attorneys, with power to act without any other and with full power of
substitution, to execute, deliver and file in its or his name and on its or his
behalf, and in each of the undersigned Officer's and Director's capacity or
capacities as shown below, (a) a Registration Statement on Form S-3 (or other
appropriate form) with respect to the registration under the Securities Act of
1933, as amended, of up to $3,000,000,000 in aggregate initial offering price of
(i) NationsBank Corporation's unsecured debt securities, which may be either
senior or subordinated and which may include medium-term notes and debt
denominated in foreign currencies, (ii) shares of NationsBank Corporation
preferred stock, which may be represented by depositary shares, and (iii) shares
of NationsBank Corporation common stock (the debt securities, preferred stock
and common stock hereinafter collectively referred to as the "Securities"),
which Securities may be offered separately or together, in separate series and
in amounts, at prices and on terms to be determined at the time of sale, all as
authorized by the Board of Directors of NationsBank Corporation as of December
20, 1994, and all documents in support thereof or supplemental thereto and any
and all amendments, including any and all pre-effective and post-effective
amendments, to the foregoing (hereinafter collectively called the "Registration
Statement"), and (b) such registration statements, petitions, applications,
consents to service of process or other instruments, any and all documents in
support thereof or supplemental thereto, and any and all amendments or
supplements to the foregoing, as may be necessary or advisable to qualify or
register the securities covered by said Registration Statement under such
securities laws, regulations and requirements as may be applicable; and each of
NationsBank Corporation and said Officers and Directors hereby grants to said
attorneys, and to each of them, full power and authority to do and perform each
and every act and thing whatsoever as said attorneys or attorney may deem
necessary or advisable to carry out fully the intent of this power of attorney
to the same extent and with the same effect as NationsBank Corporation might or
could do, and as each of said Officers and Directors might or could do
personally in his capacity or capacities as aforesaid, and each of NationsBank
Corporation and said Officers and Directors hereby ratifies and confirms all
acts and things which said attorneys or attorney might do or cause to be done by
virtue of this power of attorney and its or his signature as the same may be
signed by said attorneys or attorney, or any of them, to any or all of the
following (and/or any and all amendments and supplements to any or all thereof):
such Registration Statement under the Securities Act of 1933, as amended, and
all such registration statements, petitions, applications, consents to service
of process and other instruments, and any and all documents in support thereof
or supplemental thereto, under such securities laws, regulations and
requirements as may be applicable.
IN WITNESS WHEREOF, NationsBank Corporation has caused this power of
attorney to be signed on its behalf, and each of the undersigned Officers and
Directors in the capacity or capacities noted has hereunto set his hand as of
the date indicated below.
NATIONSBANK CORPORATION
(Registrant)
By: /s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
Dated: December 20, 1994
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
</TABLE>
<TABLE>
<C> <S> <C>
/s/ HUGH L. MCCOLL, JR. Chairman, Chief Executive Officer and December 20, 1994
(HUGH L. MCCOLL, JR.) Director (Principal Executive Officer)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ JAMES H. HANCE, JR. Chief Financial Officer December 20, 1994
(JAMES H. HANCE, JR.) (Principal Financial Officer)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ MARC D. OKEN Executive Vice President and Chief December 20, 1994
Accounting Officer (Principal Accounting
(MARC D. OKEN) Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
</TABLE>
<TABLE>
<C> <S> <C>
/s/ RONALD W. ALLEN Director December 20, 1994
(RONALD W. ALLEN)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ WILLIAM M. BARNHARDT Director December 20, 1994
(WILLIAM M. BARNHARDT)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ THOMAS M. BELK Director December 20, 1994
(THOMAS M. BELK)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ THOMAS E. CAPPS Director December 20, 1994
(THOMAS E. CAPPS)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ R. EUGENE CARTLEDGE Director December 20, 1994
(R. EUGENE CARTLEDGE)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ CHARLES W. COKER Director December 20, 1994
(CHARLES W. COKER)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ THOMAS G. COUSINS Director December 20, 1994
(THOMAS G. COUSINS)
</TABLE>
<TABLE>
<C> <S> <C>
(ALAN T. DICKSON) Director December , 1994
</TABLE>
<TABLE>
<C> <S> <C>
/s/ W. FRANK DOWD, JR. Director December 20, 1994
(W. FRANK DOWD, JR.)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ A. L. ELLIS Director December 20, 1994
(A. L. ELLIS)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ PAUL FULTON Director December 20, 1994
(PAUL FULTON)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ L. L. GELLERSTEDT, JR. Director December 20, 1994
(L. L. GELLERSTEDT, JR.)
</TABLE>
<TABLE>
<C> <S> <C>
(TIMOTHY L. GUZZLE) Director December , 1994
</TABLE>
<TABLE>
<C> <S> <C>
(E. BRONSON INGRAM) Director December , 1994
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
</TABLE>
<TABLE>
<C> <S> <C>
/s/ W. W. JOHNSON Director December 20, 1994
(W. W. JOHNSON)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ BUCK MICKEL Director December 20, 1994
(BUCK MICKEL)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ JOHN J. MURPHY Director December 20, 1994
(JOHN J. MURPHY)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ JOHN C. SLANE Director December 20, 1994
(JOHN C. SLANE)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ JOHN W. SNOW Director December 20, 1994
(JOHN W. SNOW)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ MEREDITH R. SPANGLER Director December 20, 1994
(MEREDITH R. SPANGLER)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ ROBERT H. SPILMAN Director December 20, 1994
(ROBERT H. SPILMAN)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ WILLIAM W. SPRAGUE, JR. Director December 20, 1994
(WILLIAM W. SPRAGUE, JR.)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ RONALD TOWNSEND Director December 20, 1994
(RONALD TOWNSEND)
</TABLE>
<TABLE>
<C> <S> <C>
/s/ JACKIE M. WARD Director December 20, 1994
(JACKIE M. WARD)
</TABLE>
<TABLE>
<C> <S> <C>
(MICHAEL WEINTRAUB) Director December , 1994
</TABLE>
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
December 20, 1994
Registration of Debt Securities, Preferred Stock
and Common Stock and Appointment of Committee
RESOLVED FURTHER, that Paul J. Polking and Charles M. Berger
hereby are appointed attorneys-in-fact for, and each of them with
full power to act without the other hereby is authorized and
empowered to sign the Registration Statement and any amendment or
amendments (including any pre-effective or post-effective
amendments) thereto on behalf of, the Corporation and any of the
following, to wit: the Principal Executive Officer, the
Principal Financial Officer, the Principal Accounting Officer,
and any other officer of the Corporation;
<PAGE>
CERTIFICATE OF SECRETARY
I, Allison Gilliam, Assistant Secretary of NationsBank
Corporation, a corporation duly organized and existing under the
laws of the State of North Carolina (the "Corporation"), do
hereby certify that the foregoing is a true and correct copy of
the resolutions duly adopted by the Board of Directors of the
Corporation at a meeting of the Board of directors held on
December 20, 1994, at which meeting a quorum was present and
acting throughout and that said resolution is in full force and
effect and has not been amended or rescinded as of the date
hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed
the seal of the Corporation as of this 21st day of December,
1994.
\s\ ALLISON GILLIAM
Assistant Secretary
(CORPORATE SEAL)
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)_____
BANKAMERICA NATIONAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
Not Applicable
(Jurisdiction of incorporation or organization if not a U.S. national bank)
95-3804037
(I.R.S. Employer Identification No.)
One World Trade Center, New York, New York 10048-1191
(Address of principal executive offices) (Zip Code)
General Counsel
Bank of America NT & SA
335 Madison Avenue, 4th Floor
New York, NY 10017
(212) 503-8297
(Name, address and telephone number of agent for services)
NationsBank Corporation
(Exact name obligor as specified in its
its charter)
North Carolina 56-0906609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
NationsBank Corporate Center 28255
Charlotte, North Carolina (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
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, 250 E Street,
S.W., Washington, D.C. 20219; Federal Deposit
Insurance Corporation, 550 17th Street, N.W.,
Washington, D.C. 20429; Board of Governors of The
Federal Reserve System, 20th and C Streets, N.W.,
Washington, D.C. 20551
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
Item 2. Affiliations with 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 3)
Item 16. List of Exhibits
List below are exhibits filed as a part of this
statement of eligibility and qualification.
Exhibit 1 A copy of the Articles of Association
of the Trustee; incorporated herein by
reference to Exhibit 1 filed with Form
T-1 Statement, Registration No. 33-34670.
Exhibit 2 A copy of the Certificate of Authority
to Commence Business of the Trustee,
incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 2-97868.
Exhibit 3 Included in Exhibit 1.
Exhibit 4 A copy of the existing by-laws of the
Trustee; incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 33-34670.
Exhibit 5 A copy of each indenture referred to in
Item 4 if the obligor is in default.
Not applicable.
-2-
<PAGE>
Exhibit 6 Consents of BankAmerica National
Trust Company formerly Security Pacific
National Trust Company (New York) required
by Section 321 (b) of the Trust Indenture
Act of 1939; incorporated herein by
reference to Exhibit 6, filed with Form
T-1 Statement, Registration No. 2-97868.
Exhibit 7 A copy of the latest report of the Trustee
published pursuant to the laws or the
requirements of its supervising or
examining authority.
Exhibit 8 A copy of any order 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.
Exhibit 9 Foreign trustees are required to file a
consent to service of process on Form F-X.
Not Applicable.
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 Item 2 the answer to said Item is based on
incomplete information.
Item 2 may be considered 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, BankAmerica National Trust Company,
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 New York
and State of New York, on the 30th day of January, 1995.
BANKAMERICA NATIONAL TRUST COMPANY
By Geovanni Barris
Geovanni Barris
Trust Officer
-3-
<PAGE>
BANKAMERICA NATIONAL TRUST COMPANY Exhibit 7 to Form T-1
One World Trade Center, 18th Floor
New York City, NY 10006
FDIC Certificate Number 24430
Consolidated Report of Condition for
Insured Commercial Banks for September 30, 1994
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last
business day of the quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
_________________________________________________________________Assets
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin [1]............................283,902
b. Interest-bearing balances [2].................... 10,200
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A).....................2,013
b. Available-for-sale securities
(from Schedule RC-B, column D).....................4,702
3. Federal funds sold and securities
purchases under agreements to resell:
a. Federal funds sold...............................
b. Securities purchased under
agreements to resell..............................
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)....................109,026
b. LESS: Allowance for loan and
lease losses.......................................436
c. LESS: Allocated transfer risk
reserve................................
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus
4.b and 4.c)....................................108,590
5. Assets held in trading accounts (from
Schedule RC-D)........................................
6. Premises and fixed assets (including
capitalized leases).......................................960
7. Other real estate owned...............................
8. Investments in unconsolidated subsidiaries and
associated companies..................................
9. Customer's liability to this bank on
acceptances outstanding...............................
10. Intangible assets (from Schedule RC-M).................17,473
11. Other assets (from Schedule RC-F).....................156,606
12. Total assets (sum of items 1 through 11...............584,446
_______________
<PAGE>
[1] Includes cash items in process of collection and unposted debits.
[2] Includes time certificates of deposit not held in trading ccounts.
SCHEDULE RC-CONTINUED
Dollar Amounts in Thousands
_________________________________________________________________
Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E)...................266,318
(1) Noninterest-bearing [1].........................266,318
(2) Interest-bearing.....................
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................
(1) Noninterest-bearing...........................
(2) Interest-bearing..............................
14. Federal funds purchased and securities
sold under agreements to repurchase:
a. Federal funds purchased...........................
b. Securities sold under agreements to repurchase....
15. Demand notes issued to the U.S. Treasury.............
16. Other borrowed money..............................155,748
17. Mortgage indebtedness and obligations
under capitalized leases.............................
18. Bank's liability on acceptances executed
and outstanding......................................
19. Notes and debentures subordinated to deposits........
20. Other liabilities (from Schedule RC-G).............. 31,126
21. Total liabilities (sum of items 13 through 20).........453,192
22. Limited-life preferred stock.........................
EQUITY CAPITAL
23. Perpetual preferred stock............................
24. Common Stock......................................... 500
25. Surplus......................................... 139,063
26(a)Undivided profits and capital reserves.......... (8,311)
26(b)Net unrealized holding gains (losses) on available for sale
securities........................................... 2
27. Cumulative foreign currency translation adjustments..
28. Total equity capital (sum of items 23 through 27).134,654
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21,22 and 28)........ 584,446
_______________
1] Includes total demand deposits and noninterest-bearing time
and savings deposits.
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
NationsBank Corporation
(Exact name of obligor as specified in its charter)
North Carolina 56-0906609
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
NationsBank Corporate Center
Charlotte, North Carolina 28255
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939
(the "Act") and Rule 24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in The City
of New York, and State of New York, on the 26th day of January, 1995.
THE BANK OF NEW YORK
By: /s/ MARY JANE MORRISSEY
Name: Mary Jane Morrissey
Title: Assistant Vice President
-4-
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
September 30, 1994, published in accordance with a call made by
the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,833,550
Interest-bearing balances .......... 701,828
Securities:
Held-to-maturity securities ........ 1,359,569
Available-for-sale securities ...... 1,725,600
Federal funds sold in domestic
offices of the bank ................ 5,350,368
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................24,252,467
LESS: Allowance for loan and
lease losses ..............629,631
LESS: Allocated transfer risk
reserve .....................30,661
Loans and leases, net of unearned
income, allowance, and reserve 23,592,175
Assets held in trading accounts ...... 1,354,396
Premises and fixed assets (including
capitalized leases) ................ 629,219
Other real estate owned .............. 51,372
Investments in unconsolidated
subsidiaries and associated
companies .......................... 178,742
Customers' liability to this bank on
acceptances outstanding ............ 996,184
Intangible assets .................... 76,599
Other assets ......................... 1,498,770
Total assets ......................... $40,348,372
LIABILITIES
Deposits:
In domestic offices ................ $19,692,982
Noninterest-bearing .......8,179,472
Interest-bearing .........11,513,510
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,034,789
Noninterest-bearing ..........57,902
Interest-bearing ..........9,976,887
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,240,870
Securities sold under agreements
to repurchase .................... 37,612
Demand notes issued to the U.S.
Treasury ........................... 197,519
Trading liabilities .................. 975,739
Other borrowed money:
With original maturity of one year
or less .......................... 1,621,466
With original maturity of more than
one year ......................... 33,955
Bank's liability on acceptances exe-
cuted and outstanding .............. 997,024
Subordinated notes and debentures .... 1,062,320
Other liabilities .................... 1,450,981
Total liabilities .................... 37,345,257
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,577,819
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ (36,779)
Cumulative foreign currency transla-
tion adjustments .................. (5,875)
Total equity capital ................ 3,003,115
Total liabilities and equity
capital ........................... $40,348,372
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition 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 Board of
Governors of the Federal Reserve System and is true and correct.
Thomas A. Renyi
J. Carter Bacot (right brace) Directors
Alan R. Griffith
<PAGE>
