SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 10, 1996
NATIONSBANK CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina
(State of Incorporation)
1-6523
(Commission File Number)
56-0906609
(IRS Employer Identification No.)
NationsBank Corporate Center
Charlotte, North Carolina
(Address of principal executive offices)
28255
(Zip Code)
(704) 386-5000
Registrant's telephone number, including area code)
<PAGE>
ITEM 5. OTHER EVENTS.
Medium Term Notes
On January 10, 1996, a Committee of the Board of Directors of the
Registrant (the "Committee") approved the implementation of a medium-term note
program, pursuant to which certain officers of the Registrant may cause it to
issue from time to time up to $1,500,000,000 aggregate principal amount of
certain medium-term notes, which may be senior debt securities, designated as
the Senior Medium-Term Notes, Series E (the "Senior Medium-Term Notes") or
subordinated debt securities, designated as the Subordinated Medium-Term Notes,
Series E (the "Subordinated Medium-Term Notes" and, together with the Senior
Medium-Term Notes, the "Medium-Term Notes"), or any combination thereof, and may
establish the price, terms and conditions and the specific method of
distribution of the Medium-Term Notes. The Senior Medium-Term Notes will be
issued under an Indenture dated as of January 1, 1995 between the Registrant and
First Trust of New York, National Association, as successor trustee to
BankAmerica National Trust Company. The Subordinated Medium-Term Notes will be
issued under an Indenture dated as of January 1, 1995 between the Registrant and
The Bank of New York. The resolutions of the Committee are included as Exhibit
99.1 hereto.
On January 10, 1996, the Registrant entered into a distribution agreement
with the agents named therein (the "United States Distribution Agreement"), the
terms of which will govern sales of the Medium-Term Notes. The Medium-Term Notes
are described generally in the Prospectus dated November 24, 1995 constituting a
part of the Registration Statement (hereinafter described), as supplemented by a
Prospectus Supplement dated January 10, 1996. The United States Distribution
Agreement is included as Exhibit 99.2 hereto.
The Medium-Term Notes will be issued from time to time pursuant to the
Registrant's Registration Statement on Form S-3, as amended, Registration No.
33-63097 (the "Registration Statement"), on a delayed basis pursuant to Rule 415
under the Securities Act of 1933, as amended. The Registration Statement
registered up to $3,000,000,000 aggregate initial offering price of the
Registrant's unsecured debt securities (either senior or subordinated), shares
of its preferred stock (whichmay be represented by depositary shares) and shares
of its common stock and was declared effective on November 24, 1995. The
Registrant has not yet issued any securities under the Registration Statement.
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<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Indenture dated as of January 1, 1995 between
NationsBank Corporation and First Trust of New York,
National Association, as successor trustee to
BankAmerica National Trust Company, incorporated herein
by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3, as amended,
Registration No. 33-57533
4.2 Form of Senior Medium-Term Note, Series
E (Fixed Rate)
4.3 Form of Senior Medium-Term Note, Series
E (Floating Rate)
4.4 Indenture dated as of January 1, 1995 between
NationsBank Corporation and The Bank of New York, as
trustee, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form
S-3, as amended, Registration No. 33-57533
4.5 Form of Subordinated Medium-Term Note,
Series E (Fixed Rate)
4.6 Form of Subordinated Medium-Term Note,
Series E (Floating Rate)
99.1 Resolutions of a Committee of the Board
of Directors dated January 10, 1996 with
respect to the terms of the offering of
the Medium-Term Notes
99.2 Master United States Distribution
Agreement dated January 10, 1996 with
respect to the offering of the Medium-
Term Notes
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONSBANK CORPORATION
By: /s/ Paul J. Polking
_______________________
PAUL J. POLKING
Executive Vice President
and General Counsel
Dated: January 12, 1996
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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 CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES E
(Fixed Rate) CUSIP 63858R ____
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
FINAL 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 "Corporation,"
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
- --------
1 Applies only if this Note is a Global Security.
<PAGE>
Date following the next succeeding Regular Record Date, and on the
Stated Maturity Date or Final Maturity Date shown above (or any
Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which any such option has been exercised,
each such Stated Maturity Date, Final 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 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,
that is not a day on which banking institutions are generally authorized
or obligated by law to close in the City of New York.
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 Corporation designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Corporation,
by check mailed to the person entitled
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<PAGE>
thereto at his address last appearing on the registry books of the Corporation
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 Bank of New York at 101
Barclay Street, New York, New York 10286 (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 by an 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 Corporation 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
ATTEST:
By:______________________
Assistant Secretary
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<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:_____________
First Trust of New York, National
Association, as Trustee
By: The Bank of New York,
as Authenticating Agent
By:__________________________
Authorized Signatory
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<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES E
(Fixed Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Corporation 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
Corporation and First Trust of New York, National Association as
successor Trustee to BankAmerica National Trust Company (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 Corporation, 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 Corporation's Senior Medium-Term Notes, Series E,
limited in aggregate principal amount to $1,500,000,000. 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 Corporation 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.
This Note may be redeemed at the option of the Corporation 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 CORPORATION 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
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<PAGE>
of the Corporation 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 Corporation, 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
Corporation's failure to pay principal of (or premium, if any, on) the Notes
when due, or to pay interest on the Notes within 30 days after the same becomes
due, (ii) the Corporation's breach of its other covenants contained in this Note
or in the Indenture, which breach is not cured within 90 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
Corporation) 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
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation 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 Corporation
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.
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No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Corporation, 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 Corporation 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 Corporation relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Corporation designated
by it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation 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.
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 Corporation 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
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the entity 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 Corporation, the
Trustee nor any such agent shall be affected by notice to the contrary.
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<PAGE>
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
Corporation 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 Corporation 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.]
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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 Corporation, 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.
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[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf
of the Trustee) must receive at __________________, or at such other place or
places of which the Corporation shall from time to time notify the Holder of
this Note, not more than 60 nor less than 30 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.]
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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.1
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 CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES E
(Floating Rate)
CUSIP 63858R _________
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR ____________
INTEREST RATE (IF DIFFERENT): ___Federal Funds Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate Page:____
SPREAD: CMT Maturity Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE: ___Other:________________
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: [ ] This Note is a Renewable
INTEREST RATE RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: [ ] This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
NationsBank Corporation, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the "Corporation,"
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
- --------
1 Applies only if this Note is a Global Security.
<PAGE>
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 Base Rate and Index Maturity specified
above, until the principal hereof is paid or duly made available for payment.
The Corporation 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 or Final
Maturity Date shown above (or any Redemption Date as defined on the reverse
hereof or any Optional Repayment Date with respect to which any such option has
been exercised, each such Stated Maturity Date, Final 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 Base Rate 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 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
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"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, that (i) is not a day on which banking institutions are
generally authorized or obligated by law to close in The City of New York
and, (ii) if the Base Rate 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 Corporation designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Corporation,
by check mailed to the person entitled thereto at his address last appearing on
the registry books of the Corporation 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 Bank of New York, as Issuing and Paying Agent, at 101 Barclay Street, New
York, New York 10286 (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 or an 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.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation 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
ATTEST:
- ----------------------------
Assistant Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: ____________________________
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By: The Bank of New York, as
Authenticating Agent
By:__________________________
Authorized Signatory
5
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[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES E
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Corporation 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 Corporation and First Trust of New York, National Association as
successor Trustee to BankAmerica National Trust Company, (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 Corporation, 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 Corporation's Senior Medium-Term Notes, Series E
(herein called the "Notes"), limited in aggregate principal amount to
$1,500,000,000. 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 Corporation 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.
This Note may be redeemed at the option of the Corporation 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 CORPORATION 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
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of the Corporation 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 Corporation, 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 or the CMT
Rate as their Base Rate, by the actual number of days in the year.
The Base Rate (as defined herein) with respect to this Note may be (i)
the CD Rate, (ii) the Commercial Paper Rate, (iii) LIBOR, (iv) the Federal Funds
Rate, (v) the Prime Rate, (vi) the Treasury Rate, (vii) the CMT Rate, (viii) the
Eleventh District Cost of Funds Rate or (ix) such other rate as will be
described on the face hereof and a rider to this Note.
Except as described below, this Note will bear interest at the rate
determined by reference to the appropriate interest rate basis (the "Base Rate")
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
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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 Base Rate 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 Base Rate the CD Rate, the Commercial Paper Rate, the Federal Funds Rate,
the Prime Rate or the CMT 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 Eleventh District Cost
of Funds Rate will be the last Business Day of the month immediately preceding
such Interest Reset Date in which the Federal Home Loan Bank of San Francisco
(the "FHLB") publishes such Index (as defined below); and 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
8
<PAGE>
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 3:00 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 3:00 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 for
negotiable certificates of deposit of major United States money center
banks 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 for commercial paper of
the Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA",
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<PAGE>
or the equivalent, by a nationally recognized securities 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))]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 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 on the face of
this Note. "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 the applicable LIBOR rate 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
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London interbank market, as selected by the Calculation Agent
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 commencing on the applicable Interest
Reset Date 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 for loans in the LIBOR Currency to leading
European banks, having the Index Maturity specified on the face
hereof commencing on the applicable Interest Reset Date 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 Telerate" is
specified on the face hereof, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank offered rates
of major banks for the applicable LIBOR Currency, or (b) 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. If
neither LIBOR Telerate nor LIBOR Reuters is specified on the face
hereof, LIBOR for the applicable LIBOR Currency will be determined as if
LIBOR Telerate (and, if the U.S. dollar is the LIBOR Currency,
Page 3750) 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 Federal Funds Rate. The Federal Funds Rate
means, with respect to an Interest Determination Date (a "Federal
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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;
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 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 U.S. Prime 1 (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 U.S. Prime 1 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. If fewer than two such rates
appear on the Reuters Screen U.S. Prime 1, the Prime Rate will 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 the Prime Rate Interest Determination
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,
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selected by the Calculation Agent 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 U.S. Prime 1" means the display designated as
page "U.S. Prime 1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the U.S. Prime 1 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, 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.
Determination of CMT Rate. CMT Rate means with respect to an Interest
Determination Date relating to a CMT Rate Note or any Floating Rate Note for
which the interest rate is determined by reference to the CMT Rate (a "CMT Rate
Interest Determination Date"), the rate displayed on the designated CMT Telerate
Page
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under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the Related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no longer
published, or if not published by 3:00 p.m. New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each a "Referenced Dealer") in The City of New York selected by the Calculation
Agent (from five such Referenced Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct, non-callable fixed rate
obligations of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market side offer prices as of approximately 3:30 p.m. New York
City time, on the CMT Rate Interest Determination Date of three Referenced
Dealers in The City of New York (from five such Referenced Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the even of
equality, one of the highest) and lowest quotation (or, in the event of
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<PAGE>
equality, one of the lowest)), for Treasury Notes with original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000.
If three or four (and not five) of such Referenced Dealers are quoting
as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor lowest of
such quotes will be eliminated; provided however, that if fewer than
three Referenced Dealers selected by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity
Index, the quotes for the Treasury Rate Note with the shorter remaining term
to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face of this Note (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), or the purpose of
displaying Treasury Constant Maturity as reported in H.15(519). If no such page
is specified, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury Securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the fact of this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of this Note, the
Designated CMT Maturity Index shall be two years.
Determination of Eleventh District Cost of Funds Rate. Eleventh
District Cost of Funds Rate means, with respect to an Interest Determination
Date relating to an Eleventh District Cost of Funds Rate (an "Eleventh District
Cost of Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month preceding such Eleventh
District Cost of Funds Rate Interest Determination Date as set forth under the
caption "Eleventh District" on Telerate page 7058 as of 11:00 a.m., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on the Telerate page 7058 on
any related Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the monthly weighted average
cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month next preceding
15
<PAGE>
such Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate for such Eleventh District Cost of Funds
Rate Interest Determination Date will be the Eleventh District Cost of Funds
Rate in effect on such Eleventh District Cost of Funds Rate Interest
Determination Date. "Telerate Page 7058" means the display on the Dow Jones
Telerate Service on such page (or such other page as may replace such page on
the service for the purpose of displaying the Eleventh District Cost of Funds
Rate) for the purpose of displaying the monthly average cost of the funds paid
by member institutions of the Eleventh Federal Home Loan Bank District.
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
Corporation's failure to pay principal of (or premium, if any, on) the Notes
when due, or to pay interest on the Notes within 30 days after the same becomes
due, (ii) the Corporation's breach of its other covenants contained in this Note
or the Indenture, which breach is not cured within 90 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
Corporation) 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
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation 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
16
<PAGE>
waive compliance by the Corporation 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 here for 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 Corporation, 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 Corporation 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 Corporation relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Corporation designated
by it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation 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.
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 Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
17
<PAGE>
Prior to due presentment for registration of transfer of this Note, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the entity 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 Corporation, the
Trustee 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 The
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
Corporation 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 Corporation 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.]
18
<PAGE>
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 Corporation, 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.
19
<PAGE>
[OPTION TO ELECT REPAYMENT]
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf
of the Trustee) must receive at ______________, or at such other place or places
of which the Corporation shall from time to time notify the Holder of this Note,
not more than 60 nor less than 30 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.]
20
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this
Note is a Renewable Note which initially matures on the Stated Maturity Date
shown on the face of this Note. At each Renewal Date, the maturity of this Note
will be automatically extended to the corresponding New Maturity Date unless the
holder of this Note delivers a completed Extension Termination Notice to the
Trustee or the Paying Agent on behalf of the Trustee not less than 15 nor more
than 30 days prior to the applicable Renewal Date. The Extension Termination
Notice may specify all or a portion of the outstanding principal amount of the
Note so long as the principal amount of the Note remaining outstanding after
repayment is an integral multiple of $1,000. Upon timely delivery of such
Extension Termination Notice, the term of the principal amount of this Note
subject to such notice will be deemed automatically to mature on the Stated
Maturity Date or the then applicable New Maturity Date, as the case may be. The
remaining principal balance of such Note, if any, will be deemed to
automatically be extended to the corresponding New Maturity Date but in no
circumstances may such maturity be extended beyond the Final Maturity Date.
Notwithstanding any such extension, the interest rate applicable to this Note
will continue to be calculated as set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
21
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this
Note is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note by delivery to the Trustee (or any duly authorized Paying
Agent) of an Extendible Option Notice under the terms of this Note as
supplemented by this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
The Corporation may exercise its option with respect to an Extendible
Note by delivery to the Trustee (or any duly appointed Paying Agent) of an
Extendible Option Notice at least 45 but not more than 60 days prior to the
Stated Maturity Date originally in effect with respect to such Note or, if the
Stated Maturity Date of such Note has already been extended, the Extended
Maturity Date then in effect. After such receipt and not later than 40 days
prior to the Stated Maturity Date or an Extended Maturity Date, as the case may
be (each, a "Maturity Date"), the Trustee (or any duly appointed Paying Agent)
will mail first class mail, postage prepaid, to the holder of such Extendible
Note a notice (the "Extension Notice") relating to such extension period (the
"Extension Period") setting forth (i) the election of the Corporation to extend
the maturity of such Extendible Note, (ii) the new Extended Maturity Date, (iii)
in the case of a Fixed Rate Note, the interest rate applicable to the Extension
Period or, in the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to the Extension Period, and (iv) the provisions, if any,
for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the
Trustee (or any duly appointed Paying Agent) of an Extension Notice to the
holder of an Extendible Note, the maturity of such Note shall be extended
automatically as set forth in the Extension Notice, and, except as modified by
the Extension Notice and as described in the next paragraph, such Extendible
Note will have the same terms as prior to the mailing of such Extension Notice.
22
<PAGE>
Notwithstanding the foregoing, not later than 20 days prior to the
Maturity Date for an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business Day), the Corporation may, at its option,
revoke the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, provided for in the
Extension Notice and establish a higher interest rate, in the case of a Fixed
Rate Note, or a higher Spread and/or Spread Multiplier, in the case of a
Floating Rate Note, for the Extension period by mailing or causing the Trustee
(or any duly appointed Paying Agent) to mail notice of such higher interest rate
or higher Spread and/or Spread Multiplier, as the case may be, first class mail,
postage prepaid, to the holder of such Note. Such notice shall be irrevocable.
All Extendible Notes with respect to which the Maturity Date is extended will
bear such higher interest rate, in the case of a Fixed Rate Note, or higher
Spread and/or Spread Multiplier, in the case of a Floating Rate Note, for the
Extension Period.
If the Corporation elects to extend the maturity of an Extendible Note,
the holder of such Note will have the option to elect repayment of such Note by
the Corporation on the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid interest to such date. In
order for an Extendible Note to be so repaid on the Maturity Date, the
Corporation must receive, at least 15 days but not more than 30 days prior to
the Maturity Date then in effect with respect to the Note, (i) the Note with the
form "Option to Elect Repayment" on the reverse of the Note duly completed or
(ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" attached to the Note, will be received by the Trustee (or any duly
appointed Paying Agent) not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Note and duly completed form are received by the Trustee (or any duly
appointed Paying Agent) by such fifth Business Day. Such option may be exercised
by the holder of an Extendible Note for less than the aggregate principal amount
of the Note then outstanding, provided that the principal amount of the Note
remaining outstanding after repayment is an integral multiple of $1,000.
23
<PAGE>
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.1
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 CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES E CUSIP 63858S ____
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
FINAL 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 "Corporation,"
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 or Final Maturity Date
shown above (or
- --------
1 Applies only if this Note is a Global Note.
<PAGE>
any Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which any such option has been exercised,
each such Stated Maturity Date, Final 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 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,
that is not a day on which banking institutions are generally authorized
or obligated by law to close in The City of New York.
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 Corporation designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Corporation,
by check mailed to the person entitled thereto at his address last appearing
on the registry books of the Corporation relating to the Notes. Notwithstanding
the
2
<PAGE>
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 Bank of New York at 101 Barclay Street, New York, New York
10286 (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 an 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 Corporation 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
ATTEST:
By:___________________________
Assistant Secretary
3
<PAGE>
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, N.A.,
as Trustee
By: __________________________________
Authorized Signatory
4
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES E
(Fixed Rate)
This Medium-Term Note is one of a duly authorized series of Securities
of the Corporation 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 Corporation 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 Corporation, 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
Corporation's Subordinated Medium-Term Notes, Series E (herein called the
"Notes"), limited in aggregate principal amount to $1,500,000,000. 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 CORPORATION 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 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 Corporation 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.
5
<PAGE>
This Note may be redeemed at the option of the Corporation 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 CORPORATION 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 Corporation 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 Corporation, 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 Corporation) 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 Corporation.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation 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
Corporation 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
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<PAGE>
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 Corporation, 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 Corporation 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 Corporation relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Corporation designated
by it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation 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.
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 Corporation 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
Corporation, the Issuing and Paying Agent and any agent of the Corporation or
the Issuing and Paying Agent may treat the entity 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
7
<PAGE>
Note be overdue, and neither the Corporation, 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 The
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
Corporation 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 Corporation 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.]
8
<PAGE>
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 Corporation, 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.
9
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf
of the Trustee) must receive at __________________, or at such other place or
places of which the Corporation shall from time to time notify the Holder of
this Note, not more than 60 nor less than 30 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.]
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<PAGE>
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.1
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 CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES E
(Floating Rate)
CUSIP 63858S _________
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR ____________
INTEREST RATE (IF DIFFERENT): ___Federal Funds Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate Page:____
SPREAD: CMT Maturity Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE: ___Other:________________
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: [ ] This Note is a Renewable
INTEREST RATE RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: [ ] This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
NationsBank Corporation, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the "Corporation,"
which term includes any successor corporation under the Indenture referred to
on the reverse hereof), for value received, hereby promises to pay to
- --------
1 Applies only if this Note is a Global Security.
<PAGE>
- --------------------------------------------------------------,
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 Base Rate and Index Maturity specified above, until the principal
hereof is paid or duly made available for payment. The Corporation 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 or Final Maturity Date shown above
(or any Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which any such option has been exercised, each
such Stated Maturity Date, Final 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 Base Rate 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 be paid to the person in whose
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<PAGE>
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, that (i) is not a day on which
banking institutions are generally authorized or obligated by law to
close in the City of New York, and (ii) if the Base Rate 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 Corporation designated as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Corporation,
by check mailed to the person entitled thereto at his address last appearing on
the registry books of the Corporation 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 Bank of New York at 101 Barclay Street, New York, New York
10286 (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 or an 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.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation 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
ATTEST:
- ----------------------------
Assistant Secretary
4
<PAGE>
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
5
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES E
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of Securities
of the Corporation 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 Corporation 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 Corporation, 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
Corporation's Subordinated Medium-Term Notes, Series E, limited in aggregate
principal amount to $1,500,000,000. 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 CORPORATION 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 Corporation 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.
6
<PAGE>
This Note may be redeemed at the option of the Corporation 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 CORPORATION 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 Corporation 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 Corporation, 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 or the CMT Rate as their
Base Rate, by the actual number of days in the year.
The Base Rate (as defined herein) with respect to this Note may be (i)
the CD Rate, (ii) the Commercial Paper Rate, (iii) LIBOR, (iv) the Federal Funds
Rate, (v) the Prime Rate, (vi) the Treasury Rate, (vii) the CMT Rate, (viii) the
Eleventh District Cost of Funds Rate or (ix) such other rate as will be
described on the face hereof and a rider to this Note.
Except as described below, this Note will bear interest at the rate
determined by reference to the appropriate interest rate basis (the "Base Rate")
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
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<PAGE>
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 Base Rate 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 Base Rate the CD Rate, the Commercial Paper Rate, the Federal Funds rate,
the Prime Rate or the CMT 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 Eleventh District Cost
of Funds Rate will be the last Business Day of the month immediately preceding
such Interest Reset Date in which the Federal Home Loan Bank of San Francisco
(the "FHLB") publishes such Index (as defined below); and 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).
8
<PAGE>
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 3:00 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 3:00 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 for negotiable certificates
of deposit of major United States money center banks 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
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<PAGE>
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 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
securities 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))]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 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 on the face of
this Note. "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
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<PAGE>
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 the applicable LIBOR rate 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 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 commencing on the applicable
Interest Reset Date 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 for loans in the LIBOR Currency to leading
European banks, having the Index Maturity specified on the face
hereof commencing on the applicable Interest Reset Date 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 Telerate" is
specified on the face hereof, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank offered rates
of major banks for the applicable LIBOR Currency or (b) 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. If
neither LIBOR Telerate nor LIBOR Reuters is specified on the face
hereof, LIBOR for the applicable LIBOR Currency will be determined as if
LIBOR Telerate (and, if the U.S. dollar is the LIBOR Currency, Page
3750) had been specified.
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<PAGE>
"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 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; 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 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 U.S. Prime 1 (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 U.S. Prime 1 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. If fewer than two such rates
appear on the Reuters Screen U.S. Prime 1, the Prime Rate will be
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<PAGE>
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 the Prime Rate Interest Determination
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 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 U.S. Prime 1" means the display designated as
page "U.S. Prime 1" on the Reuters Monitor Money Rates Service (or such other
page as may replace the U.S. Prime 1 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, 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
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Interest Determination Date will be the Treasury Rate then in effect on such
Treasury Rate Interest Determination Date.
Determination of CMT Rate. CMT Rate means with respect to an Interest
Determination Date relating to a CMT Rate Note or any Floating Rate Note for
which the interest rate is determined by reference to the CMT Rate (a "CMT Rate
Interest Determination Date"), the rate displayed on the designated CMT Telerate
Page under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the Related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no longer
published, or if not published by 3:00 p.m. New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each a "Referenced Dealer") in The City of New York selected by the Calculation
Agent (from five such Referenced Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct, non-callable fixed rate
obligations of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination
14
<PAGE>
Date will be calculated by the Calculation Agent and will be a yield to
maturity based on the arithmetic mean of the secondary market side offer
prices as of approximately 3:30 p.m. New York City time on the CMT Rate
Interest Determination Date of three Referenced Dealers in The City of
New York (from five such Referenced Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the even of
equality, one of the highest) and lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000.
If three or four (and not five) of such Referenced Dealers are quoting
as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor lowest of
such quotes will be eliminated; provided however, that if fewer than
three Referenced Dealers selected by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an
original maturity as described in the third preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity
Index, the quotes for the Treasury Rate Note with the shorter remaining
term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face of this Note (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), or the purpose of
displaying Treasury Constant Maturity as reported in H.15(519). If no such page
is specified, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury Securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the fact of this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of this Note, the
Designated CMT Maturity Index shall be two years.
Determination of Eleventh District Cost of Funds Rate. Eleventh
District Cost of Funds Rate means, with respect to an Interest Determination
Date relating to an Eleventh District Cost of Funds Rate (an "Eleventh District
Cost of Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month preceding such Eleventh
District Cost of Funds Rate Interest Determination Date as set forth under the
caption "Eleventh District" on Telerate page 7058 as of 11:00 a.m., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on the Telerate page 7058 on
any related Eleventh District Cost of Funds Rate Interest Determination Date,
15
<PAGE>
the Eleventh District Cost of Funds Rate for such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the monthly weighted average
cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month next preceding such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate for
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date. "Telerate Page 7058" means the
display on the Dow Jones Telerate Service on such page (or such other page as
may replace such page on the service for the purpose of displaying the Eleventh
District Cost of Funds Rate) for the purpose of displaying the monthly average
cost of the funds paid by member institutions of the Eleventh Federal Home Loan
Bank District.
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 Corporation) 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 Corporation.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation 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
16
<PAGE>
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 Corporation
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 here for 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 Corporation, 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 Corporation 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 Corporation relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Corporation designated
by it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation 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.
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 Corporation may require payment of
17
<PAGE>
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
Corporation, the Issuing and Paying Agent and any agent of the Corporation or
the Issuing and Paying Agent may treat the entity 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 Corporation, 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 The
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
Corporation 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 Corporation 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.]
18
<PAGE>
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 Corporation, 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.
19
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf
of the Trustee) must receive at ______________, or at such other place or places
of which the Corporation shall from time to time notify the Holder of this Note,
not more than 60 nor less than 30 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.]
20
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this
Note is a Renewable Note which initially matures on the Stated Maturity Date
shown on the face of this Note. At each Renewal Date, the maturity of this Note
will be automatically extended to the corresponding New Maturity Date unless the
holder of this Note delivers a completed Extension Termination Notice to the
Trustee or the Paying Agent on behalf of the Trustee not less than 15 nor more
than 30 days prior to the applicable Renewal Date. The Extension Termination
Notice may specify all or a portion of the outstanding principal amount of the
Note so long as the principal amount of the Note remaining outstanding after
repayment is an integral multiple of $1,000. Upon timely delivery of such
Extension Termination Notice, the term of the principal amount of this Note
subject to such notice will be deemed automatically to mature on the Stated
Maturity Date or the then applicable New Maturity Date, as the case may be. The
remaining principal balance of such Note, if any, will be deemed to
automatically be extended to the corresponding New Maturity Date but in no
circumstances may such maturity be extended beyond the Final Maturity Date.
Notwithstanding any such extension, the interest rate applicable to this Note
will continue to be calculated as set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
21
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this
Note is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note by delivery to the Trustee (or any duly authorized Paying
Agent) of an Extendible Option Notice under the terms of this Note as
supplemented by this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
The Corporation may exercise its option with respect to an Extendible
Note by delivery to the Trustee (or any duly appointed Paying Agent) of an
Extendible Option Notice at least 45 but not more than 60 days prior to the
Stated Maturity Date originally in effect with respect to such Note or, if the
Stated Maturity Date of such Note has already been extended, the Extended
Maturity Date then in effect. After such receipt and not later than 40 days
prior to the Stated Maturity Date or an Extended Maturity Date, as the case may
be (each, a "Maturity Date"), the Trustee (or any duly appointed Paying Agent)
will mail first class mail, postage prepaid, to the holder of such Extendible
Note a notice (the "Extension Notice") relating to such extension period (the
"Extension Period") setting forth (i) the election of the Corporation to extend
the maturity of such Extendible Note, (ii) the new Extended Maturity Date, (iii)
in the case of a Fixed Rate Note, the interest rate applicable to the Extension
Period or, in the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to the Extension Period, and (iv) the provisions, if any,
for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the
Trustee (or any duly appointed Paying Agent) of an Extension Notice to the
holder of an Extendible Note, the maturity of such Note shall be extended
automatically as set forth in the Extension Notice, and, except as modified by
the Extension Notice and as described in the next paragraph, such Extendible
Note will have the same terms as prior to the mailing of such Extension Notice.
22
<PAGE>
Notwithstanding the foregoing, not later than 20 days prior to the
Maturity Date for an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business Day), the Corporation may, at its option,
revoke the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, provided for in the
Extension Notice and establish a higher interest rate, in the case of a Fixed
Rate Note, or a higher Spread and/or Spread Multiplier, in the case of a
Floating Rate Note, for the Extension period by mailing or causing the Trustee
(or any duly appointed Paying Agent) to mail notice of such higher interest rate
or higher Spread and/or Spread Multiplier, as the case may be, first class mail,
postage prepaid, to the holder of such Note. Such notice shall be irrevocable.
All Extendible Notes with respect to which the Maturity Date is extended will
bear such higher interest rate, in the case of a Fixed Rate Note, or higher
Spread and/or Spread Multiplier, in the case of a Floating Rate Note, for the
Extension Period.
If the Corporation elects to extend the maturity of an Extendible Note,
the holder of such Note will have the option to elect repayment of such Note by
the Corporation on the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid interest to such date. In
order for an Extendible Note to be so repaid on the Maturity Date, the
Corporation must receive, at least 15 days but not more than 30 days prior to
the Maturity Date then in effect with respect to the Note, (i) the Note with the
form "Option to Elect Repayment" on the reverse of the Note duly completed or
(ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" attached to the Note, will be received by the Trustee (or any duly
appointed Paying Agent) not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Note and duly completed form are received by the Trustee (or any duly
appointed Paying Agent) by such fifth Business Day. Such option may be exercised
by the holder of an Extendible Note for less than the aggregate principal amount
of the Note then outstanding, provided that the principal amount of the Note
remaining outstanding after repayment is an integral multiple of $1,000.
23
RESOLUTIONS OF THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
January 10, 1996
Approval of Medium-Term Notes
WHEREAS, by resolutions adopted by the Board of Directors (the "Board") of
the Corporation at a meeting duly called and held on September 27, 1995, this
Committee was appointed by the Board (the "Committee") in connection with the
issuance of up to an aggregate principal amount of $3,000,000,000 of the
Corporation's unsecured debt securities (either senior or subordinated and
including medium-term notes), and shares of its preferred stock and shares of
its common stock (collectively, the "Securities") to be offered on terms to be
determined by the Committee; and
WHEREAS, on September 29, 1995 the Corporation filed a Registration
Statement on Form S-3, Registration No. 33-63097 (the "Registration Statement"),
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, with respect to the Securities which are to
be offered on a delayed or continuous basis, which Registration Statement was
amended on November 13, 1995 and was declared effective on November 24, 1995;
and
WHEREAS, no stop order suspending the effectiveness of the Registration
Statement has been received by the Corporation and no proceedings for that
purpose have been instituted or threatened against the Corporation; and
WHEREAS, the Committee has determined that issuing up to $1,500,000,000 in
aggregate principal amount of debt securities on behalf of the Corporation
through a medium-term note program utilizing unsecured senior and subordinated
notes with varying maturities and interest rates is advisable and in the
Corporation's best interests;
NOW, THEREFORE, BE IT RESOLVED, that the Corporation hereby establishes and
there is hereby authorized to be issued medium-term notes, which may be a series
of senior debt securities, designated as the Senior Medium-Term Notes, Series E
(the "Senior Medium-Term Notes") and a series of subordinated debt securities,
designated as the Subordinated Medium-Term Notes, Series E (the "Subordinated
Medium-Term Notes" and, together with the Senior Medium-Term Notes, the
"Medium-Term Notes"), which Medium-Term Notes shall be subject to the terms and
entitled to the benefits of the Indenture dated as of January 1, 1995, between
the Corporation and First Trust of New York, N.A. as successor trustee to
BankAmerica National Trust Company, as trustee (the Senior Trustee"), in the
case of Senior Medium-Term Notes, and the Indenture dated as of January 1, 1995,
between the Corporation and The Bank of New York, as trustee (the
<PAGE>
"Subordinated Trustee"), in the case of Subordinated Medium-Term Notes, all of
which Medium-Term Notes shall be issued under the Registration Statement in an
aggregate principal amount not in excess of $1,500,000,000;
RESOLVED FURTHER, that the Chairman of the Board and Chief Executive
Officer, the Chief Financial Officer, any Senior Vice President or any Associate
General Counsel and the Secretary or any Assistant Secretary of the Corporation
are hereby authorized and empowered to execute and deliver, and this Committee
hereby approves, the form of United States Master Distribution Agreement (the
"Distribution Agreement"), dated as of January 10, 1996, among the Corporation
and the Agents (as defined therein), in the form presented to the Committee and
attached hereto as Exhibit A, relating, among other things, to the sale of the
Medium-Term Notes and to the indemnification of and contribution to the Agents,
with such changes as such officers may deem necessary or appropriate, the
execution thereof being conclusive evidence of such approval;
RESOLVED FURTHER, that any of the Chairman of the Board and Chief Executive
Officer, the Chief Financial Officer, any Senior Vice President or the Treasurer
of the Corporation (each, an "Authorized Officer") hereby is authorized and
empowered to determine from time to time the method and terms of the sale of any
Medium-Term Notes, including but not limited to the selection of the persons, if
any, to act as agent for the Corporation from time to time in connection with
the sale of any Medium-Term Notes and the approval of administrative procedures
relating to the issuance and transfer of such Medium-Term Notes;
RESOLVED FURTHER, that each Authorized Officer hereby is authorized and
empowered to determine all of the specific terms and provisions of any
Medium-Term Notes to be sold by the Corporation from time to time and the
conditions of the sale thereof, including but not limited to (i) the specified
time or times of any offering of Medium-Term Notes, (ii) whether the Medium-Term
Notes to be sold will be Senior Medium-Term Notes or Subordinated Medium-Term
Notes, (iii) the additional designation of such series of Medium-Term Notes, if
any, (iv) the date or dates on which such Medium-Term Notes will be issued, (v)
the method of and date for sale and delivery of such Medium-Term Notes, (vi)
whether such Medium-Term Notes will be sold to an agent as principal or through
an agent as agent for the Corporation, or whether the Corporation will sell such
Medium- Term Notes directly on its own behalf, (vii) the fee or commission to be
paid in connection with any such sale, (viii) the aggregate principal amount of
such Medium-Term Notes which may be authenticated and delivered at any such
time, (ix) the date or dates on which the principal of such Medium-Term Notes is
payable, (x) the rate or rates per annum, and, if applicable, the method for
determining such rate or rates, if any, at which such Medium-Term Notes will
bear interest (which may be fixed or
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floating), the dates 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 such Medium-Term Notes on any interest payment date;
(xi) the place or places at which the principal of (and premium, if any, on) and
any interest on such Medium-Term Notes shall be payable, any such Medium-Term
Notes may be surrendered for registration or transfer or exchange and notices
and demands to or upon the corporation in respect of such Medium-Term Notes may
be served, which may or may not be the same place and which may or may not be
maintained in the City of New York, if different from that specified herein;
(xii) the denominations in which such Medium-Term Notes are authorized to be
issued, if different from that specified herein; (xiii) any provisions relating
to the mandatory redemption of such Medium-Term Notes by the Corporation or
redemption of the Medium-Term Notes at the option of the holder, (xiv) any
sinking fund to be provided in connection with such Medium-Term Notes; (xv)
whether such Medium-Term Notes will be original issue discount; (xvi) the person
or persons who, from time to time, will serve as calculation agent with respect
to such Medium-Term Notes, if different from that specified herein; (xvii) any
provisions relating to the extension of maturity of, or the renewal of,
Medium-Term Notes or the conversion of such Medium- Term Notes into other
securities of the Corporation; and (xviii) any other terms and provisions of the
Medium-Term Notes;
RESOLVED FURTHER, that the Medium-Term Notes shall be issued in registered
form and, unless otherwise determined by an Authorized Officer, such Medium-Term
Notes shall be issued in book-entry only form, represented by one or more global
notes registered in the name of The Depository Trust Company or its nominee, in
denominations of $1,000 or any integral multiple thereof, and shall be dated the
date of authentication; and the forms of registered Senior Medium-Term Notes and
the forms of registered Subordinated Medium-Term Notes presented to this
Committee and attached hereto as Exhibit B and Exhibit C, respectively, together
with such modifications as are appropriate to reflect the determinations of any
Authorized Officer, are hereby in all respects approved;
RESOLVED FURTHER, that the Administrative Procedures dated as of January
10, 1996 (the "Procedures") attached hereto as Exhibit D, are hereby approved in
all respects, and the proper officers of the Corporation are authorized and
empowered to direct the issuance of Medium-Term Notes from time to time in
accordance with such Procedures, as such Procedures may be revised from time to
time with the approval of any Authorized Officer or Senior Vice President of the
Corporation;
RESOLVED FURTHER, that the Medium-Term Notes shall be executed in the name
of and on behalf of the Corporation by any of the Chairman and Chief Executive
Officer, the Chief Financial Officer, or any Senior Vice President or Vice
President, the
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corporate seal thereon shall be attested by the Secretary or any
Assistant Secretary, and the signatures of the Chairman and Chief Executive
Officer, the Chief Financial Officer, any Senior Vice President or Vice
President, the Secretary and any Assistant Secretary may be in the form of
facsimile signatures of the present or any future Chairman and Chief Executive
Officer, Chief Financial Officer or Vice President, Secretary or Assistant
Secretary, and should any officer of the Corporation who signs, or whose
facsimile signature appears upon, any of the Medium-Term Notes, cease to be such
an officer prior to the issuance of such Medium-Term Notes, the Medium-Term Note
so signed or bearing such facsimile signature shall, nevertheless, be valid,
and, without prejudice to the use of the facsimile signatures of any other
officer as hereinbefore authorized, the facsimile signatures of Hugh L. McColl,
Jr., Chairman and Chief Executive Officer of the Corporation, and of James W.
Kiser, Secretary of the Corporation, are hereby expressly approved and accepted;
RESOLVED FURTHER, that pursuant to the provisions of the respective
Indentures, each of the Chairman of the Board and Chief Executive Officer, the
Chief Financial Officer, any Senior Vice President or any Associate General
Counsel of the Corporation is hereby authorized and empowered to cause the
Medium-Term Notes, upon execution thereof, to be delivered to the trustee under
the applicable Indenture, or to any agent designated by such trustee, for
authentication and delivery and to deliver to said trustee or agent thereof, as
the case may be, the written order of the Corporation for the authentication and
delivery of the Medium-Term Notes, if necessary;
RESOLVED FURTHER, that, unless and until otherwise determined by an
Authorized Officer, The Bank of New York hereby initially is appointed the agent
for the Corporation for the registration, transfer, exchange and payment of the
Medium-Term Notes (the "Paying Agent"), and is authorized to be appointed by the
Trustee as authenticating agent, and that the corporate trust office of said
bank located at 101 Barclay Street, New York, New York 10286, hereby is
designated, pursuant to the provisions of Section 4.02 of the respective
Indentures, as the office or agency of the Corporation where the Medium-Term
Notes may be presented for registration, transfer, exchange and payment, and the
proper officers of the Corporation are hereby authorized and empowered to
execute and deliver any documents required by the respective trustees under the
Indentures, or by the Paying Agent, with respect to such appointment of The Bank
of New York, or any other person as any Authorized Officer shall determine, as
Paying Agent for the Corporation;
RESOLVED FURTHER, that, unless and until otherwise determined by an
Authorized Officer, The Bank of New York initially is appointed agent for the
calculation of interest with respect to the Medium-Term Notes as described in
the Prospectus of the Corporation dated November 24, 1995, as supplemented by
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the Prospectus Supplement of the Corporation dated January 10, 1996, a copy of
which is attached hereto as Exhibit E, and the proper officers of the
Corporation are hereby authorized and empowered to execute and deliver any
documents required by The Bank of New York, with respect to such appointment, or
by any other person who may so be appointed by an Authorized Officer;
RESOLVED FURTHER, that whenever either of the respective trustees under the
Indentures shall, in its capacity as trustee, deem it expedient, it may apply to
counsel (which may be counsel for the Corporation) for advice or instructions,
and, for its actions and good faith in such agency capacity, including but not
limited to action in reliance on such advice or instructions or on advice of its
own counsel, the Corporation shall fully protect and hold harmless that agent
from and against any liability;
RESOLVED FURTHER, that the officers of the Corporation be, and they hereby
are, authorized and directed to do any and all things necessary, appropriate or
convenient to carry into effect the foregoing resolutions.
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NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
January 10, 1996
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
"Corporation"), confirms its agreement with each of you (individually, as
"Agent" and collectively, the "Agents") with respect to the issue and sale by
the Corporation of its Senior Medium-Term Notes, Series E (the "Senior Notes")
and its Subordinated Medium-Term Notes, Series E (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 Corporation and
First Trust of New York, N.A. (the "Senior Trustee") as successor trustee to
BankAmerica National Trust Company (the "Senior Indenture"). The Subordinated
Notes are to be issued pursuant to an Indenture dated as of January 1, 1995
between the Corporation and The Bank of New York (the "Subordinated Trustee"),
as trustee (the "Subordinated Indenture). 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 (i) by the
Corporation directly to purchasers using Agents to solicit purchasers in their
capacity as agents of the Corporation and (ii) by the Corporation to one or more
of the Agents as principal for resale to purchasers.
The Corporation has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 33-63097) for the
registration of debt securities (both senior and subordinated), preferred
shares, depositary 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 Corporation
for the purpose of registering additional Notes and in connection with
<PAGE>
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 Agents by the Corporation for use in
connection with the offering of the Notes which is not required to be filed by
the Corporation 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 Corporation of the right to sell Notes directly
on its own behalf as set forth in Section 3(b) hereof, the Corporation hereby
appoints the Agents named herein or appointed hereunder as agents in connection
with the sale of the Notes. 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 Corporation shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Corporation 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. The Agents shall not have any obligation to
purchase Notes from the Corporation as principal, but an Agent and the
Corporation may agree from time to time that such Agent shall purchase Notes as
principal. Any such 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
Corporation, the Agent, acting solely as agent for the Corporation and not as
principal, will solicit purchases of the Notes. All Notes sold through an Agent
as agent will be sold at 100% of their principal amount unless otherwise agreed
to by the Corporation and such Agent. Such Agent will communicate to the
Corporation, 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
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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 Corporation
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 Corporation's
agreement herein. The Agent shall make reasonable efforts to assist the
Corporation in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Corporation. The
Agent shall not have any liability to the Corporation in the event any such
agency purchase is not consummated for any reason other than the negligence of
the Agent. If the Corporation shall default on its obligation to deliver Notes
to a purchaser whose offer it has accepted, the Corporation 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 Corporation and (ii) notwithstanding such
default, pay to such Agent any commission to which it would be entitled in
connection with such sale.
The Corporation 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 Corporation, the Agents will forthwith suspend solicitation of
purchases from the Corporation until such time as the Corporation has advised
the Agents that such solicitation may be resumed.
For those offers to purchase Notes accepted by the Corporation, the
Agent shall be paid a commission. Unless otherwise agreed between the
Corporation and the Agent, such commission shall be an amount equal to the
applicable percentage of the principal amount of each Note sold by the
Corporation as a result of a solicitation made by such Agent as set forth in
Exhibit C hereto.
(e) Reliance. The Corporation and the Agents agree that any Notes the
placement of which an Agent arranges shall be placed by such Agent in reliance
on the representations, warranties, covenants and agreements of the Corporation
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Corporation 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
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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 Corporation 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 Corporation 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 Corporation by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration Statement and the
Prospectus.
(iii) The Corporation 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
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<PAGE>
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 Corporation 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 Corporation 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; Etc.
(a) Purchases as Principal. In the event that an Agent and the
Corporation shall expressly so agree, 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 Corporation (which shall be agreed upon orally, with written
confirmation prepared by the Agent and delivered to the Corporation within two
business days of such oral agreement). In the absence of a separate written
agreement, the Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations, warranties and covenants
of the Corporation herein contained and shall be subject to the terms and
conditions in the manner set forth herein, including Section 11(b) hereof. 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 Corporation to
such brokers and dealers.
(b) Corporation Sales to Unsolicited Purchasers. Notwithstanding any
provision herein to the contrary, the Corporation 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 named herein shall be
entitled to any commission pursuant to this Agreement.
(c) 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 Corporation and the applicable Agent and
set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Corporation of an offer for the purchase of
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Notes. Administrative procedures with respect to the sale of Notes shall be
agreed upon from time to time by the Agents and the Corporation (the
"Procedures"). Initial Administrative Procedures dated January 10, 1996 shall
remain in effect until changed by the Agents and the Corporation. The Agents and
the Corporation agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation 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 Corporation 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 Corporation will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes or 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, upon request, 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 Corporation will deliver to the Agents
as many signed and conformed copies of the Registration Statement
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(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
Corporation 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 Corporation
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 Corporation with
the Commission pursuant to the 1934 Act as soon as practicable after the filing
thereof.
(d) Preparation of Pricing Supplements. The Corporation 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) 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 Corporation, 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 Corporation 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 Corporation with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
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respect to any fiscal year, the Corporation 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 Corporation
for the preceding fiscal year, the Corporation 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 Corporation 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
Corporation'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 Qualification. The Corporation 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 Corporation 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 Corporation 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 Corporation will
promptly advise the Agents of the receipt by the Corporation 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 Corporation, during the period
when the Prospectus is required to be delivered under the 1933 Act,
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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 Corporation 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 Corporation and (ii) the Agents shall not then hold any Notes
as principal purchased from the Corporation, to the time the Corporation 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 Corporation, 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 Corporation herein and to the accuracy of the
statements of the Corporation's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Corporation 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 Corporation Counsel. The opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel to the
Corporation, 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 Corporation, to the
effect of paragraphs (ii) and (iii) below:
(i) The Corporation 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, National Association (South),
NationsBank of Texas, National Association, and NationsBank,
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.
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(ii) Except for those jurisdictions specifically
enumerated in such opinion, to the best of such counsel's
knowledge, neither the Corporation 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. ss.
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 Corporation
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 Corporation and constitutes a legal, valid
and binding agreement of the Corporation, enforceable against
the Corporation 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. ss. 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 Corporation in accordance
with its terms, and the Notes have been duly authorized and,
when the terms of the Notes have been established and when the
Notes have been completed, executed, authenticated and
delivered in accordance with the provisions of the applicable
Indenture, the applicable Board Resolutions and this Agreement
against payment of the consideration therefor, will constitute
legal, valid and binding obligations of the Corporation
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
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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. ss. 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 Corporation 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 Corporation 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
Corporation or any of the Subsidiaries is a party or bound, or
any order or regulation known to such counsel to be applicable
to the Corporation or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body
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or arbitrator having jurisdiction over the Corporation 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 Corporation 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 Corporation
or upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Corporation; and
(B) as to matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Corporation 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
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statements therein, in light of the circumstances under which they were
made, not misleading.
(b) Officer's Certificate. On 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
Corporation, 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 Corporation 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 Corporation
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 Corporation has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the date of such certificate, and (iv) 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 Corporation 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
Corporation 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
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and audit committee of the Corporation 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
Corporation 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
Corporation 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 Corporation
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
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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 Corporation 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 Corporation 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, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Corporation 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 Corporation 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.
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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
Corporation 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 Corporation and
deliver the Note to the Corporation, and, if the Agent has theretofore paid the
Corporation for such Note, the Corporation 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 Corporation 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 Corporation's account. Unless
otherwise agreed between the Corporation 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 Corporation.
The Corporation 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 Corporation 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 Corporation shall furnish or cause to be furnished to the Agents
forthwith a certificate of the Chairman and Chief Executive Officer, any Senior
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Vice President, the Chief Financial Officer, the Chief Accounting Officer or
Treasurer of the Corporation 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
Corporation 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 Corporation, and Paul J. Polking, General Counsel to the
Corporation, 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,
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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 Corporation 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 Corporation;
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 Corporation 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
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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
Corporation 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 Corporation 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 Corporation may otherwise have.
(b) Each Agent severally agrees to indemnify and hold harmless the
Corporation, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Corporation within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Corporation to each Agent, but only with reference
to written information relating to such Agent furnished to the Corporation 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 Corporation
acknowledges that the statements set forth in the last two paragraphs 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
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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 Corporation on the grounds of policy or otherwise, the
Corporation 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 Corporation 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 Corporation 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
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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 Corporation within
the meaning of either the 1933 Act or the 1934 Act, each officer of the
Corporation who shall have signed the Registration Statement and each director
of the Corporation shall have the same rights to contribution as the
Corporation, 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 Corporation 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 Corporation's
accountants and counsel, of the Trustees and their counsel, and of
any registrar, transfer agent, paying agent or 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
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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 Corporation;
(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. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Corporation 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 Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 11. 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 Corporation 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 Corporation 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
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<PAGE>
Corporation 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 Corporation 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 Corporation 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 Corporation, then the Corporation 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 Corporation and the
Agent reasonably fail to agree on any such revised terms, then either the
Corporation 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 1(d) 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 Corporation 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, 14 and 15 hereof shall remain in effect.
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<PAGE>
SECTION 12. Additional Agents.
The Corporation 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, including the form of letter
attached hereto as Exhibit D, and delivery to the Corporation of addresses for
notice hereunder and under the Procedures. After the time an Agent is appointed,
the Corporation shall deliver to the Agent copies of these documents earlier
delivered to other Agents under Sections 5(a), 5(b) and 5(c) and, if such
appointment is on an on-going basis, Sections 7(b), 7(c) and 7(d) hereof.
SECTION 13. 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 Corporation 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 Corporation:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Corp. Treas. Div. NC1-007-23-01
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 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
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<PAGE>
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 13.
SECTION 14. 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 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Corporation 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 Corporation a counterpart hereof,
whereupon this instrument along with all
25
<PAGE>
counterparts will become a binding agreement between the Agents and the
Corporation 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
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<PAGE>
LEHMAN BROTHERS, INC.
By: _________________________
Name: _______________________
Title: ______________________
MERRILL LYNCH & CO.
By: _________________________
Name: Richard N. Doyle, Jr.
Title: Director
MORGAN STANLEY & CO., INC.
By: _________________________
Name: Richard C. Schwartz
Title: Principal
SALOMON BROTHERS INC
By: _________________________
Name:
Title:
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<PAGE>
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
7th Floor, NC1-007-01-01
Charlotte, North Carolina 28255-0065
Telecopy: (704) 386-9926
With a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285 - 1200
Attention: Medium-Term Note Department
Telecopy: (212) 528-1718
Telephone: (212) 526-2040
Merrill Lynch & Co., as representative of the Agents
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10048
Attention: Managing Director of Debt Syndicate
Salomon Brothers Inc
32nd Floor
Seven World Trade Center
New York, New York 10048
Attention: MTN Group
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<PAGE>
EXHIBIT B
The following terms, if applicable, shall be agreed to by an Agent and
the Corporation 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:
Base Rate:
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:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
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<PAGE>
EXHIBIT C
As compensation for the services of an Agent hereunder, the Corporation
shall pay it, on a discount basis, a commission for the sale of each Note by
such Agent which, unless otherwise agreed between the Corporation and Agent,
shall be equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
<S> <C>
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
</TABLE>
The commission for Notes with a maturity more than 30 years or sold to one or
more Agents as principal also is subject to negotiation between the Corporation
and the Agent at the time of sale.
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<PAGE>
EXHIBIT D
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term Senior/Subordinated
Notes, Series E, by NationsBank Corporation
Dear __________:
The Master United States Distribution Agreement dated December __, 1995 (the
"Agreement"), among NationsBank Corporation ("NationsBank") and the Agents named
therein, provides for the issue and sale by NationsBank of its Medium Term
Notes, Series E.
Subject to and in accordance with the terms of the Agreement and accompanying
Administrative Procedures, NationsBank hereby appoints you as Agent (as such
term is defined in the Agreement) in connection with the purchase of Notes as
described in the accompanying Pricing Supplement No. ___, dated ___________,
199__, (the "Notes") but only for this one reverse inquiry transaction. Your
appointment is made subject to the terms and conditions applicable to Agents
under the Agreement and terminates upon payment for the Notes or other
termination of this transaction. Accompanying this letter is a copy of the
Agreement, the provisions of which are incorporated herein by reference. Copies
of the officer's certificate, opinions of counsel, and auditors' letter
described in the Agreement are not enclosed but are available upon your request.
This letter agreement, like the Agreement, is governed by and construed in
accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our agreement, please
sign and return this letter to us on or before settlement date. This action will
confirm your appointment and your acceptance and agreement to act as Agent in
connection with the issue and sale of the above described Notes under the terms
and conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
NATIONSBANK CORPORATION [Name of Agent]
By:____________________ By:_____________________
Name:__________________ Name:___________________
Title:_________________ Title:__________________
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