<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1996
REGISTRATION NO. 333-6319
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WACHOVIA CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NORTH CAROLINA 56-1473727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 NORTH MAIN STREET 191 PEACHTREE STREET, N.E.
WINSTON-SALEM, NORTH CAROLINA 27101 AND ATLANTA, GEORGIA 30303
(910) 770-5000 (404) 332-5000
</TABLE>
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
KENNETH W. MCALLISTER
WACHOVIA CORPORATION
100 NORTH MAIN STREET
WINSTON-SALEM, NORTH CAROLINA 27101
(910) 732-5141
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
COPY TO:
JEFFREY M. STEIN
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303
(404) 572-4600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 474,
please check the following box. / /
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS FILED AS PART
OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE UNSOLD $200,000,000 PRINCIPAL
AMOUNT OF SENIOR DEBT SECURITIES REGISTERED UNDER A PREVIOUSLY FILED
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 33-6280).
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<PAGE> 2
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1996
REGISTRATION NO. 33-6280
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WACHOVIA CORPORATION
-------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NORTH CAROLINA 56-1473727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 NORTH MAIN STREET 191 PEACHTREE STREET, N.E.
--- --- ----
WINSTON-SALEM, NORTH CAROLINA 27101 AND ATLANTA, GEORGIA 30303
----- -----
(910) 770-5000 (404) 332-5000
---
</TABLE>
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
KENNETH W. MCALLISTER
------------------------
WACHOVIA CORPORATION
------------------------
100 NORTH MAIN STREET
---
WINSTON-SALEM, NORTH CAROLINA 27101
-----
(910) 732-5141
---
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
COPY TO:
JEFFREY M. STEIN
-----------------
KING & SPALDING
------------------
191 PEACHTREE STREET
----------------------
ATLANTA, GEORGIA 30303
------------------------
(404) 572-4600
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 474,
please check the following box. / /
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS FILED AS PART
OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE UNSOLD $1,000,000,000
PRINCIPAL AMOUNT OF SUBORDINATED DEBT SECURITIES REGISTERED UNDER A PREVIOUSLY
FILED REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-6319).
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 3
PROSPECTUS
WACHOVIA CORPORATION
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
---------------------
Wachovia Corporation (the "Corporation") may offer from time to time up to
$1,200,000,000 aggregate principal amount (or its equivalent based on the
applicable exchange rate at the time of offering if denominated in foreign
currencies) of its unsecured debt securities (the "Securities") consisting of
(i) up to $200,000,000 aggregate principal amount of its senior debt securities
(the "Senior Securities"), and (ii) up to $1,000,000,000 aggregate principal
amount of its subordinated debt securities (the "Subordinated Securities"), each
on terms to be determined by market conditions at the time of sale. As used
herein, the Securities shall include securities denominated in U.S. dollars or,
if so specified in the applicable Prospectus Supplement, in any other currency,
including composite currencies such as the European Currency Unit. The
Securities may be sold directly by the Corporation to the public or through
agents designated from time to time, through underwriting syndicates led by one
or more managing underwriters or through one or more underwriters acting alone.
The specific aggregate principal amount, maturity, rate and time of payment
of interest, if any, purchase price, any terms for redemption or other special
terms relating to the Securities in respect of which this Prospectus is being
delivered ("Offered Securities") are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"), together with the terms of offering of
the Offered Securities.
The Senior Securities, when issued, will be unsecured and will rank on a
parity with all unsecured and unsubordinated indebtedness of the Corporation.
The Subordinated Securities, when issued, will be unsecured and will be
subordinate to Senior Indebtedness of the Corporation and, under certain
circumstances, to Additional Senior Obligations of the Corporation, each as
defined herein. Payment of principal of the Subordinated Securities may be
accelerated only in the case of the bankruptcy of the Corporation. There is no
right of acceleration in the case of a default in the payment of the principal
of, or any premium or interest on, the Subordinated Securities or in the
performance of any covenant or agreement of the Corporation.
The Securities of a series may be issued in definitive registered form
without coupons ("Registered Securities") or in the form of one or more
book-entry securities in registered form ("Book-Entry Securities").
If any agent of the Corporation, or any underwriter, is involved in the
sale of the Securities offered hereby, the name of such agent or underwriter and
any applicable commissions or discounts are set forth in, or may be calculated
from, the Prospectus Supplement, and the net proceeds to the Corporation from
such sale will be the purchase price of such Securities less such commissions or
discounts and the other attributable issuance and distribution expenses. See
"Plan of Distribution" for possible indemnification arrangements for agents or
underwriters.
---------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. THE SECURITIES WILL BE UNSECURED
OBLIGATIONS OF THE CORPORATION, WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND WILL NOT BE
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------------
The date of this Prospectus is August , 1996.
<PAGE> 4
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission, at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, and at the Commission's Regional Offices in New York
(13th Floor, 7 World Trade Center, New York, New York 10048) and Chicago (Suite
1400, 500 West Madison Street, Chicago, Illinois 60661-2511), and copies of such
material can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at prescribed
rates. In addition, such material can be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus
does not contain all the information set forth in the Registration Statement on
Form S-3 of which this Prospectus is a part and the exhibits thereto which the
Corporation has filed with the Commission under the Securities Act of 1933 (the
"Securities Act") and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference in this Prospectus the
following reports filed with the Commission pursuant to Section 13 of the
Exchange Act: (a) the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995; and (b) the Corporation's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1996 and June 30, 1996.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO
WACHOVIA CORPORATION, 100 NORTH MAIN STREET, WINSTON-SALEM, NORTH CAROLINA
27101, ATTENTION: GENERAL COUNSEL. TELEPHONE REQUESTS MAY BE DIRECTED TO (910)
770-5000.
WACHOVIA CORPORATION
Wachovia Corporation (the "Corporation") is a bank holding company
organized in 1985 under the laws of the State of North Carolina. The Corporation
is the 20th largest bank holding company in the United States, based on total
assets at June 30, 1996. At June 30, 1996, the Corporation had consolidated
assets of $46.0 billion, consolidated loans net of unearned income of $30.7
billion, consolidated deposits of $26.0 billion and consolidated shareholders'
equity of $3.7 billion. The Corporation's principal assets consist of all the
outstanding common stock of Wachovia Bank of North Carolina, N.A., Wachovia Bank
of Georgia, N.A. and Wachovia Bank of South Carolina, N.A., national banking
associations organized under the laws of the United States.
Wachovia Bank of North Carolina, N.A. provides personal, commercial, trust
and institutional banking services through 219 full-service banking offices in
95 North Carolina cities and communities and one corporate and private banking
office in Norfolk, Virginia. In addition, it has a foreign branch in Grand
Cayman and an Edge Act subsidiary, Wachovia International Banking Corporation,
with branch offices in
2
<PAGE> 5
New York City, Charlotte, North Carolina, Columbia, South Carolina and Atlanta,
Georgia. At June 30, 1996, Wachovia Bank of North Carolina, N.A. had total
assets of $26.9 billion and total deposits of $12.5 billion.
Wachovia Bank of Georgia, N.A. provides a full range of banking services
through its network of 126 offices in 49 cities and communities in Georgia, and
a foreign branch in Grand Cayman. At June 30, 1996, Wachovia Bank of Georgia,
N.A. had total assets of $18.1 billion and total deposits of $8.5 billion.
Wachovia Bank of South Carolina provides full service banking through 143
offices in 64 South Carolina cities and communities and a foreign branch in the
Cayman Islands. At June 30, 1996, Wachovia Bank of South Carolina, N.A. had
total assets of $7.3 billion and total deposits of $5.5 billion.
The Corporation also has bank-related subsidiaries engaged in mortgage
banking, credit card services, discount brokerage, savings and loan activities
and credit-related insurance.
The Corporation has dual executive offices located at 100 North Main
Street, Winston-Salem, North Carolina 27101 and 191 Peachtree Street, N.E.,
Atlanta, Georgia 30303, and its telephone numbers are (910) 770-5000 and (404)
332-5000, respectively.
CERTAIN REGULATORY CONSIDERATIONS
GENERAL
As a bank holding company, the Corporation is subject to the regulation and
supervision of the Federal Reserve Board. The Corporation's subsidiary banks
(the "Subsidiary Banks"), as national banking associations, are subject to
supervision and examination by the Office of the Comptroller of the Currency
(the "Comptroller") and the Federal Deposit Insurance Corporation (the "FDIC").
In addition, as a savings and loan holding company, the Corporation is
registered with the Office of Thrift Supervision ("OTS") and is subject to OTS
regulations, supervision and reporting requirements. The Corporation's
subsidiary savings bank, Atlantic Savings Bank, F.S.B. ("Atlantic"), also is
subject to supervision and examination by OTS. The Subsidiary Banks and Atlantic
are also subject to various requirements and restrictions, including
requirements to maintain reserves against deposits, restrictions on the types
and amounts of loans that may be granted and the interest that may be charged
thereon, and limitations on the types of investments that may be made and the
types of services that may be offered. Various consumer laws and regulations
also affect the operations of the Subsidiary Banks and Atlantic. In addition to
the impact of regulation, commercial banks and savings banks are affected
significantly by the actions of the Federal Reserve Board as it attempts to
control the money supply and credit availability in order to influence the
economy.
The federal banking agencies have broad enforcement powers over depository
institutions, including the power to terminate deposit insurance, to impose
substantial fines and other civil and criminal penalties, and to appoint a
conservator or receiver if any of a number of conditions are met. The federal
banking agencies also have broad enforcement powers over bank holding companies,
including the power to impose substantial fines and other civil and criminal
penalties.
Almost every aspect of the operations and financial condition of the
Subsidiary Banks is subject to extensive regulation and supervision and to
various requirements and restrictions under federal and state law, including
requirements governing capital adequacy, liquidity, earnings, dividends,
reserves against deposits, management practices, branching, loans, investments
and the provision of services. The activities and operations of the Corporation
also are subject to extensive federal supervision and regulation which, among
other things, limit non-banking activities, impose minimum capital requirements
and require approval to acquire 5% of any class of voting shares or
substantially all of the assets of a bank or other company. In addition to the
impact of regulation, banks and bank holding companies may be significantly
affected by legislation, which can change banking statutes in substantial and
unpredictable ways, and by the actions of the Federal Reserve Board as it
attempts to control the money supply and credit availability in order to
influence the economy.
3
<PAGE> 6
PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS
The Corporation is a legal entity separate and distinct from its
subsidiaries, including the Subsidiary Banks and Atlantic. There are various
legal and regulatory limitations on the extent to which the Corporation's
subsidiaries, including its bank subsidiaries and its savings and loan
subsidiary, can finance or otherwise supply funds to the Corporation.
The principal source of the Corporation's cash revenues is dividends from
its subsidiaries and there are certain legal restrictions under federal and
state law on the payment of dividends by such subsidiaries. The prior approval
of the Comptroller is required if the total of all dividends declared by any
national banking association in any calendar year exceeds the bank's net profits
(as defined) for that year combined with its retained net profits for the
preceding two calendar years, less any required transfers to surplus or a fund
for the retirement of any preferred stock. In addition, a dividend may not be
paid in excess of a bank's "undivided profits then on hand," after deduction
therefrom of losses in excess of the "allowance for loan and lease losses," as
such terms are defined in the applicable regulations. The relevant regulatory
agencies also have authority to prohibit a bank holding company, which would
include Wachovia Corporation, or a national banking association from engaging in
what, in the opinion of such regulatory body, constitutes an unsafe or unsound
practice in conducting its business. The payment of dividends could, depending
upon the financial condition of the subsidiary, be deemed to constitute such an
unsafe or unsound practice. Under applicable law, as a savings bank, Atlantic
must give the OTS 30 days prior notice of any proposed payment of dividends.
Retained earnings of the Corporation's banking subsidiaries available for
payment of cash dividends under all applicable regulations without obtaining
governmental approval were approximately $532 million as of December 31, 1995.
In addition, the Subsidiary Banks and their subsidiaries are subject to
limitations under Section 23A of the Federal Reserve Act with respect to
extensions of credit to, investments in, and certain other transactions with,
the Corporation and its other subsidiaries. Furthermore, loans and extensions of
credit are also subject to various collateral requirements.
CAPITAL ADEQUACY
The federal bank regulatory agencies have adopted minimum risk-based and
leverage capital guidelines for United States banking organizations. The minimum
required risk-based capital ratio of qualifying total capital to risk-weighted
assets (including certain off-balance-sheet items, such as standby letters of
credit) is 8%, of which 4% must consist of Tier 1 capital. As of June 30, 1996,
the Corporation's total risk-based capital ratio was 13.04%, including 9.05% of
Tier 1 capital. The minimum required leverage capital ratio (Tier 1 capital to
average total assets) is 3% for banking organizations that meet certain
specified criteria, including that they have the highest regulatory rating. A
higher leverage ratio may apply under certain circumstances. As of June 30,
1996, the Corporation's leverage capital ratio was 8.12%.
Failure to meet capital guidelines can subject a banking organization to a
variety of enforcement remedies, including additional substantial restrictions
on its operations and activities, termination of deposit insurance by the FDIC,
and under certain conditions the appointment of a receiver or conservator.
Federal banking statutes establish five capital categories for depository
institutions ("well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized" and "critically undercapitalized"), and impose
significant restrictions on the operations of an institution that is not at
least adequately capitalized. Under certain circumstances, an institution may be
downgraded to a category lower than that warranted by its capital levels, and
subjected to the supervisory restrictions applicable to institutions in the
lower capital category. A depository institution is generally prohibited from
making capital distributions (including paying dividends) or paying management
fees to a holding company if the institution would thereafter be
undercapitalized. Adequately capitalized institutions may accept brokered
deposits only with a waiver from the FDIC, while undercapitalized institutions
may not accept, renew, or roll over brokered deposits.
4
<PAGE> 7
An undercapitalized depository institution is also subject to restrictions
in a number of areas, including asset growth, acquisitions, branching, new lines
of business, and borrowing from the Federal Reserve System. In addition, an
undercapitalized depository institution is required to submit a capital
restoration plan. A depository institution's holding company must guarantee the
capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it becomes undercapitalized or the amount
needed to restore the capital of the institution to the levels required for the
institution to be classified as adequately capitalized at the time the
institution fails to comply with the plan and any such guarantee would be
entitled to a priority of payment in bankruptcy. A depository institution is
treated as if it is significantly undercapitalized if it fails to submit a
capital plan that is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital.
Significantly undercapitalized depository institutions may be subject to a
number of additional significant requirements and restrictions, including
requirements to sell sufficient voting stock to become adequately capitalized,
to replace or improve management, to reduce total assets, to cease acceptance of
correspondent bank deposits, to restrict senior executive compensation and to
limit transactions with affiliates. Critically undercapitalized depository
institutions are further subject to restrictions on paying principal or interest
on subordinated debt, making investments, expanding, acquiring or selling
assets, extending credit for highly-leveraged transactions, paying excessive
compensation, amending their charters or bylaws and making any material changes
in accounting methods. In general, a receiver or conservator must be appointed
for a depository institution within 90 days after the institution is deemed to
be critically undercapitalized.
SUPPORT OF SUBSIDIARY BANKS
Under Federal Reserve Board policy, the Corporation is expected to act as a
source of financial strength to, and to commit resources to support, each of the
Subsidiary Banks. This support may be required at times when, absent such
Federal Reserve Board policy, the Corporation may not be inclined to provide it.
In the event of a bank holding company's bankruptcy, any commitment by the bank
holding company to a federal bank regulatory agency to maintain the capital of a
subsidiary bank will be assumed by the bankruptcy trustee and entitled to a
priority of payment.
A depository institution insured by the FDIC can be held liable for any
loss incurred by, or reasonably expected to be incurred by, the FDIC in
connection with the default of a commonly controlled FDIC-insured depository
institution or any assistance provided by the FDIC to any commonly controlled
FDIC-insured depository institution "in danger of default". "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a default is likely to occur in the absence of regulatory assistance.
Liability for the losses of commonly-controlled depository institutions can lead
to the failure of some or all depository institutions in a holding company
structure, if the remaining institutions are unable to pay the liability
assessed by the FDIC. Any obligation or liability owed by a subsidiary bank to
its parent company is subordinate to the subsidiary bank's cross-guarantee
liability for losses of commonly-controlled depository institutions.
FDIC INSURANCE ASSESSMENTS
The Subsidiary Banks are subject to FDIC deposit insurance assessments. The
FDIC has authority to raise or lower assessment rates on insured deposits in
order to achieve certain designated reserve ratios in the Bank Insurance Fund
("BIF") and the Savings Association Insurance Fund ("SAIF") and to impose
special additional assessments. The FDIC applies a risk-based assessment system
that places each financial institution into one of nine risk categories, based
on capital levels and supervisory criteria and an evaluation of the bank's risk
to the BIF or SAIF, as applicable. The current FDIC premium schedule for the
SAIF ranges from 0.23% to 0.31% of deposits. The current FDIC premium schedule
for the BIF (effective January 1, 1996) ranges from 0% (subject to a $2,000
minimum) to 0.27%.
5
<PAGE> 8
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following unaudited table presents the consolidated ratio of earnings
to fixed charges of the Corporation for the periods indicated. The consolidated
ratio of earnings to fixed charges has been computed by dividing net income plus
all applicable income taxes plus fixed charges by fixed charges. Fixed charges
represent all interest expense (ratios are presented both excluding and
including interest on deposits), and the portion of net rental expense which is
deemed to be equivalent to interest on long-term debt. Interest expense (other
than on deposits) includes interest on long-term debt, federal funds purchased
and securities sold under agreements to repurchase, mortgages, commercial paper
and other funds borrowed.
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
JUNE 30, 1996 1995 1994 1993 1992 1991
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Including interest on deposits....................... 1.55 1.54 1.72 1.81 1.61 1.19
Excluding interest on deposits....................... 2.41 2.13 2.48 3.32 3.57 1.71
</TABLE>
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, principally to fund investments in, or extensions of credit
to, the Corporation's banking and nonbanking subsidiaries. The Corporation also
may use such proceeds to allow its subsidiaries to repay borrowings incurred by
such subsidiaries. Except as otherwise described in the Prospectus Supplement,
specific allocations of the proceeds to such purposes will not have been made at
the date of the Prospectus Supplement, although management of the Corporation
will have determined that funds should be borrowed at that time in anticipation
of future funding or capital requirements of its subsidiaries. The precise
amount and timing of such investments in and extensions of credit to the
subsidiaries will depend upon their funding requirements and the availability of
other funds to the Corporation and its subsidiaries. In addition to the
foregoing, the Corporation may also use a portion of the net proceeds to fund
possible acquisitions if suitable opportunities develop in the future. Based
upon the anticipated future financing requirements of the Corporation and its
subsidiaries, the Corporation expects that it will, from time to time, engage in
additional financings of a character and in amounts to be determined.
DESCRIPTION OF SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the
Securities offered hereby. The particular terms of the Securities offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating to
such Offered Securities (the "Applicable Prospectus Supplement").
The Senior Securities are to be issued under an Indenture dated as of
August 15, 1996 (the "Senior Indenture") between the Corporation and The Chase
Manhattan Bank, as trustee (the "Senior Trustee"). The Subordinated Securities
are to be issued under an Indenture dated as of March 1, 1993 (the "Subordinated
Indenture") between the Corporation and Mellon Bank, N.A., as trustee (the
"Subordinated Trustee"). Copies of the Senior Indenture and the Subordinated
Indenture (collectively, the "Indentures") are included as exhibits to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Securities and the Indentures do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture applicable to a particular
series of Senior Securities or Subordinated Securities (the "Applicable
Indenture"), including the definitions therein of certain terms. References to
the "Applicable Trustee" refer to the Senior Trustee or the Subordinated
Trustee, as the context indicates. Wherever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended that such
Sections, Articles or defined terms shall be incorporated herein by reference.
Article and Section references used herein are references to the Applicable
Indenture except where specific reference is made to either the Senior Indenture
or the Subordinated Indenture.
6
<PAGE> 9
Capitalized terms not otherwise defined in this Prospectus shall have the
meanings given to them in the Applicable Indenture.
The Senior Securities will be unsecured and will rank on a parity with all
unsecured and unsubordinated indebtedness of the Corporation. The Senior
Indenture contains covenants prohibiting the Corporation from disposing of, or
permitting the issuance of, capital stock of specified subsidiaries under
certain circumstances. See "Restrictive Covenants Applicable to Senior
Securities." The Subordinated Securities will be unsecured and will be
subordinated and junior to all Senior Indebtedness and, in certain circumstances
relating to the dissolution, winding-up, liquidation or reorganization of the
Corporation, to all Additional Senior Obligations (each as defined below under
"Subordination of Subordinated Securities"). The Subordinated Indenture does not
contain covenants prohibiting the Corporation from disposing of voting stock of
its subsidiaries, including the stock of any of its banking subsidiaries. Events
of default as to which payment of the principal of the Subordinated Securities
may be accelerated are limited to events relating to the bankruptcy of the
Corporation. See "Subordination of Subordinated Securities" and "Events of
Default; Limited Rights of Acceleration for Subordinated Securities."
The Indentures do not limit the amount of Securities that may be issued
thereunder and provide that Securities may be issued thereunder from time to
time in one or more series. (Section 301) Neither the Indentures nor the
Securities will limit or otherwise restrict the amount of other indebtedness
which may be incurred by the Corporation or any of its subsidiaries. In
addition, the Indentures and the Securities will not contain any provision that
would require the Corporation to repurchase or redeem or otherwise modify the
terms of the Securities upon a change in control or other events involving the
Corporation that may adversely affect the credit quality of the Corporation.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the holders of the Securities, to participate in the
assets of any subsidiary upon the liquidation or reorganization of such a
subsidiary will be subject to the prior claims of such subsidiaries' creditors
(including, in the case of a subsidiary bank, its depositors) except to the
extent that the Corporation may itself be a creditor with recognized claims
against the subsidiary. Claims on subsidiaries of the Corporation by creditors
other than the Corporation include claims with respect to long-term debt and
substantial obligations with respect to deposit liabilities, federal funds
purchased, securities sold under repurchase agreements and other short-term
borrowings. See "Wachovia Corporation."
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of and premium, if any, and interest on the Securities will be payable
at the office or agency of the Senior Trustee maintained for such purpose in New
York, New York for Senior Securities, and at the office or agency of the
Subordinated Trustee in Philadelphia, Pennsylvania for Subordinated Securities,
and at any other office or agency maintained by the Corporation for such
purposes, except that, at the option of the Corporation, interest may be paid by
mailing a check to the address of the person entitled thereto as it appears on
the Security Register. The transfer of Securities (other than Book-Entry
Securities) will be registrable for each series of Securities at the corporate
trust office of the Applicable Trustee. (Sections 301, 305 and 1002) The
corporate trust offices of the Senior Trustee and the Subordinated Trustee are
located in New York, New York and Philadelphia, Pennsylvania, respectively.
Interest on the Securities will be payable to the person in whose name the
Securities are registered at the close of business on the Regular Record Date
designated for an Interest Payment Date. (Section 307) The Securities will be
issued only in fully registered form without coupons and, unless otherwise
indicated in the Applicable Prospectus Supplement, in denominations of $1,000 or
integral multiples thereof. (Section 302) No service charge will be required for
any registration of transfer or exchange of the Securities, but the Corporation
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith other than certain exchanges not
involving any transfer. (Section 305)
The Applicable Prospectus Supplement will describe the following terms of
the Offered Securities: (a) the title of the Offered Securities; (b) whether the
Offered Securities are Senior Securities or Subordinated Securities; (c) any
limit on the aggregate principal amount of the Offered Securities; (d) the date
or dates on which the Offered Securities will mature; (e) the rate or rates
(which may be fixed or
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variable) per annum at which the Offered Securities will bear interest, if any,
the date or dates from which such interest, if any, will accrue, the dates on
which such interest, if any, will be payable and the Regular Record Dates for
such Interest Payment Dates; (f) the place or places, if any, in addition to the
office or agency of the Applicable Trustee, where the principal of and premium,
if any, and interest on the Offered Securities will be payable; (g) the period
or periods within which, the price or prices at which and the terms and
conditions upon which the Offered Securities may be redeemed, in whole or in
part, at the option of the Corporation; (h) the obligation, if any, of the
Corporation to redeem or purchase the Offered Securities pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Offered Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; (i) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which the
Offered Securities will be issuable; (j) the currency or currencies of payment
of principal of and premium, if any, and interest on the Offered Securities if
other than the currency of the United States of America; (k) any index used to
determine the amount of payment of principal of, premium, if any, or interest on
the Offered Securities; (l) if other than the principal amount thereof, the
portion of the principal amount of the Offered Securities which will be payable
upon the declaration of acceleration of the Maturity thereof, (m) the law which
will govern the terms of the Securities; (n) information with respect to
book-entry procedures, if any; and (o) any other terms of the Offered
Securities. (Section 301)
Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
any such Original Issue Discount Securities will be described in the Applicable
Prospectus Supplement. "Original Issue Discount Security" means any security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the Maturity thereof upon
the occurrence of an Event of Default and the continuation thereof. (Section
101)
BOOK-ENTRY SECURITIES
The Securities of a series may be issued in the form of one or more
Book-Entry Securities that will be deposited with a Depositary or its nominee
identified in the Applicable Prospectus Supplement. (Section 301) In such a
case, one or more Book-Entry Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of Outstanding Securities of the series to be represented by such Book-Entry
Security or Securities. Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Book-Entry Security may not be
transferred except as a whole by the Depositary for such Book-Entry Security to
a nominee of such Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor of the Depositary or a nominee of such successor. (Section 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Securities to be represented by a Book-Entry Security
will be described in the Applicable Prospectus Supplement. The Corporation
anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Book-Entry Security, the Depositary for such
Book-Entry Security or its nominee will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Securities
represented by such Book-Entry Security to the accounts of persons that have
accounts with such Depositary ("participants"). Such accounts shall be
designated by the underwriters or agents with respect to such Securities or by
the Corporation if such Securities are offered and sold directly by the
Corporation. Participants include securities brokers and dealers, banks and
trust companies, clearing corporations and certain other organizations. Access
to the Depositary's system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("indirect
participants"). Persons who are not participants may beneficially own Book-Entry
Securities held by the Depositary only through participants or indirect
participants.
Ownership of beneficial interests in any Book-Entry Security will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to
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interests of participants) for such Book-Entry Security and on the records of
participants (with respect to interests of indirect participants). The laws of
some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such laws, as well as the limits on
participation in the Depositary's book-entry system, may impair the ability to
transfer beneficial interests in a Book-Entry Security.
So long as the Depositary or its nominee is the registered owner of a
Book-Entry Security, such Depositary or such nominee will be considered the sole
owner or holder of the Securities represented by such Book-Entry Security for
all purposes under the Applicable Indenture. Except as provided below, owners of
beneficial interests in Securities represented by Book-Entry Securities will not
be entitled to have Securities of the series represented by such Book-Entry
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Securities in definitive form, and will not be
considered the owners or holders thereof under the Applicable Indenture.
Payments of principal of and any premium and interest on Securities
registered in the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Book-Entry Security representing such Securities. The Corporation expects that
the Depositary for a series of Securities or its nominee, upon receipt of any
payment of principal, premium or interest, will credit immediately participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of the Book-Entry Security for such
Securities, as shown on the records of such Depositary or its nominee. The
Corporation also expects that payments by participants and indirect participants
to owners of beneficial interests in such Book-Entry Security held through such
persons will be governed by standing instructions and customary practices, as is
now the case with securities registered in "street name," and will be the
responsibility of such participants and indirect participants. Neither the
Corporation, the Applicable Trustee, any Authenticating Agent, any Paying Agent
nor the Security Registrar for such Securities will have any responsibility or
liability for any aspect of the records relating to, or payments made on account
of, beneficial ownership interests in the Book-Entry Security for such
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 311)
If the Depositary for Securities of a series notifies the Corporation that
it is unwilling or unable to continue as Depositary or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act, the
Corporation has agreed to appoint a successor depositary. If such a successor is
not appointed by the Corporation with 90 days, the Corporation will issue
Securities of such series in definitive registered form in exchange for the
Book-Entry Security representing such series of Securities. In addition, the
Corporation may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Book-Entry Securities
shall no longer be represented by such Book-Entry Security or Securities and, in
such event, will issue Securities of such series in definitive registered form
in exchange for such Book-Entry Security or Securities representing such series
of Securities. Further, if the Corporation so specifies with respect to the
Securities of a series, or if an Event of Default, or an event which with
notice, lapse of time or both would be an Event of Default with respect to the
Securities of such series has occurred and is continuing, an owner of a
beneficial interest in a Book-Entry Security representing Securities of such
series may receive Securities of such series in definitive registered form. In
any such instance, an owner of a beneficial interest in a Book-Entry Security
will be entitled to physical delivery in definitive registered form of
Securities of the series represented by such Book-Entry Security equal in
principal amount to such beneficial interest and to have such Securities
registered in its name. (Section 305) Securities so issued in definitive form
will be issued in denominations of $1,000 and integral multiples thereof and
will be issued in registered form only, without coupons.
RESTRICTIVE COVENANTS APPLICABLE TO SENIOR SECURITIES
The Senior Indenture contains a covenant that the Corporation will not
directly or indirectly, (a) sell or permit to be issued any shares of capital
stock of a Principal Subsidiary Bank (other than directors' qualifying shares)
or any shares of capital stock of a Principal Subsidiary or any securities
convertible into or rights to subscribe to such capital stock, unless, after
giving effect to such transaction and to shares issuable upon
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conversion or exercise of rights into such capital stock, at least 80% of the
outstanding shares of capital stock of each class of such Principal Subsidiary
or Principal Subsidiary Bank shall be owned at the time, directly or indirectly,
by the Corporation or (b) pay any dividend or make any other distribution in
capital stock of a Principal Subsidiary Bank or of any Principal Subsidiary,
unless the Principal Subsidiary Bank to which the transaction relates, having
obtained any necessary regulatory approvals, unconditionally guarantees payment
of the principal of and any premium and interest on the Senior Securities.
(Section 1005 of the Senior Indenture) The term "Principal Subsidiary" or
"Principal Subsidiary Bank" is defined to mean any Subsidiary or Subsidiary
Bank, the consolidated assets of which constitute 10% or more of the assets of
the Corporation and, in the case of a Principal Subsidiary, owns shares of a
Principal Subsidiary Bank. (Section 101) At the date of this Prospectus, the
Subsidiary Banks which were Principal Subsidiary Banks were Wachovia Bank of
North Carolina, N.A., Wachovia Bank of Georgia, N.A. and Wachovia Bank of South
Carolina, N.A. There is no restriction in the Senior Indenture on the ability of
a Principal Subsidiary Bank to sell assets.
The Senior Indenture also prohibits the Corporation from creating,
assuming, incurring or suffering to exist any mortgage, pledge, encumbrance or
lien or charge of any kind upon the capital stock of a Principal Subsidiary Bank
(other than directors' qualifying shares) or the capital stock of a Principal
Subsidiary, except that the following liens are permitted: (i) liens for taxes
that are not due, are payable without penalty or are being contested in good
faith by appropriate proceedings, and (ii) liens resulting from any judgment
that has not remained undischarged or unstayed for more than 60 days. (Section
1006 of the Senior Indenture)
SUBORDINATION OF SUBORDINATED SECURITIES
The obligations of the Corporation to make any payment on account of the
principal of and premium, if any, and interest on the Subordinated Securities
will be subordinate and junior in right of payment to all Senior Indebtedness of
the Corporation and, in certain circumstances relating to the dissolution,
winding-up, liquidation of or reorganization of the Corporation, to all
Additional Senior Obligations. (Article Thirteen of the Subordinated Indenture)
"Senior Indebtedness" is defined in the Subordinated Indenture to mean (a)
all indebtedness of the Corporation for money borrowed, whether now outstanding
or subsequently created, assumed or incurred, other than (i) the Subordinated
Securities, (ii) the 7% Subordinated Notes due 1999 of the Corporation in the
aggregate principal amount of $300 million (the "7% Subordinated Notes"), (iii)
any obligation Ranking on a Parity with the Subordinated Securities (which
includes the 6 3/8% Subordinated Notes due 2003 of the Corporation in the
aggregate principal amount of $250 million and the 6 3/8% Subordinated Notes due
2009 of the Corporation in the aggregate principal amount of $250 million
(collectively, the "6 3/8% Subordinated Notes"), the 6.80% Subordinated Notes
due 2005 of the Corporation in the aggregate principal amount of $250 million
(the "6.80% Subordinated Notes") and the 6.605% Subordinated Notes due October
1, 2025 of the Corporation in the aggregate principal amount of $250 million,
the holders of which may elect to have all or a portion thereof redeemed on
October 1, 2005 (the "6.605% Subordinated Notes")), or (iv) any obligation
Ranking Junior to the Subordinated Securities and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness. The term "indebtedness of the
Corporation for money borrowed" shall mean any obligation of, or any obligation
guaranteed by, the Corporation for repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligations for payment of the purchase price of property or assets
acquired other than in the ordinary course of business. "Additional Senior
Obligations" is defined in the Indenture to mean all indebtedness of the
Corporation, whether now outstanding or subsequently created, assumed or
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations do not include (a) any
claims in respect of Senior Indebtedness, or (b) any obligations (i) Ranking
Junior to the Subordinated Securities, or (ii) Ranking on a Parity with the
Subordinated Securities. For purposes of this definition, "claim" shall have the
meaning assigned thereto in Section 101(4) of the United States Bankruptcy Code
of 1978. The Subordinated Indenture does not limit or prohibit the incurrence of
Senior Indebtedness or Additional Senior Obligations.
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The term "Ranking Junior to the Subordinated Securities" is defined in the
Subordinated Indenture to mean any obligation of the Corporation which (a) ranks
junior to and not equally with or prior to the Subordinated Securities in right
of payment upon the happening of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Corporation as a whole, whether voluntary or involuntary, and (b) is
specifically designated as ranking junior to the Subordinated Securities by
express provisions in the instrument creating or evidencing such obligation.
The term "Ranking on a Parity with the Subordinated Securities" is defined
in the Subordinated Indenture to mean any obligation of the Corporation which
(a) ranks equally with and not prior to the Subordinated Securities in right of
payment upon the happening of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Corporation as a whole, whether voluntary or involuntary, and (b) is
specifically designated as ranking on a parity with the Subordinated Securities
by express provision in the instrument creating or evidencing such obligation.
(Section 101 of the Subordinated Indenture)
The Subordinated Securities will be subordinate in right of payment to all
Senior Indebtedness, as provided in the Subordinated Indenture. No payment on
account of the principal of and premium, if any, or interest in respect of the
Subordinated Securities may be made if there shall have occurred and be
continuing a default in payment with respect to Senior Indebtedness or an event
of default with respect to any Senior Indebtedness resulting in the acceleration
of the maturity thereof. Upon any payment or distribution of assets to creditors
upon any insolvency, receivership, conservatorship, reorganization, readjustment
of debt, marshalling of assets and liabilities or similar proceedings or any
liquidation or winding-up of or relating to the Corporation as a whole, whether
voluntary or involuntary, (a) the holders of all Senior Indebtedness will first
be entitled to receive payment in full before the Holders of the Subordinated
Securities will be entitled to receive any payment in respect of the principal
of and premium, if any, or interest on the Subordinated Securities, and (b) if
after giving effect to the operation of clause (a) above, (i) any amount of
cash, property or securities remains available for payment or distribution in
respect of the Subordinated Securities ("Excess Proceeds"), and (ii) creditors
in respect of Additional Senior Obligations have not received payment in full of
amounts due or to become due thereon or payment of such amounts has not been
duly provided for, then such Excess Proceeds shall first be applied to pay or
provide for the payment in full of all such Additional Senior Obligations before
any payment may be made on the Subordinated Securities. If the Holders of
Subordinated Securities receive payment and are aware at the time of receiving
payment that all Senior Indebtedness and Additional Senior Obligations have not
been paid in full, then such payment shall be held in trust for the benefit of
the holders of Senior Indebtedness and/or Additional Senior Obligations, as the
case maybe. (Section 1301 of the Subordinated Indenture) By reason of such
subordination, in the event of insolvency, Holders of the Subordinated
Securities may recover less, ratably, than holders of Senior Indebtedness and
holders of Additional Senior Obligations.
Neither the Subordinated Securities (and the 6 3/8% Subordinated Notes, the
6.80% Subordinated Notes and the 6.605% Subordinated Notes, which Rank on a
Parity with the Subordinated Securities) nor the 7% Subordinated Notes are by
their term subordinate or senior to the other. However, the 7% Subordinated
Notes by their terms are subordinated to Senior Indebtedness and Additional
Senior Obligations and to all other obligations of the Corporation to its
creditors (subject to certain exceptions specified in the indenture pursuant to
which the 7% Subordinated Notes are outstanding). As a result of the differences
between the subordination provisions applicable to the Subordinated Securities
and the 6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605%
Subordinated Notes, and those applicable to the 7% Subordinated Notes, in the
event of any insolvency, receivership, conservatorship, reorganization,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings or any liquidation or winding up of or relating to the Corporation,
the holders of the Subordinated Securities and the 6 3/8% Subordinated Notes,
the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, may receive
more, ratably, than the holders of the 7% Subordinated Notes.
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EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION FOR SUBORDINATED SECURITIES
The Indentures (each with respect to any series of Securities) define an
"Event of Default" as any one of the following events (whatever the reason and
whether it be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body or, with respect to the
Subordinated Securities, whether it be occasioned by the subordination
provisions of the Subordinated Indenture): (a) failure to pay any interest on
any Security of that series when due and payable, continued for 30 days (in the
case of Subordinated Securities, whether or not such payment is prohibited by
the subordination provisions of the Subordinated Indenture); (b) failure to pay
principal of or any premium on any Security of that series when due; (c) failure
to deposit any sinking fund payment, when due, in respect of any Security of
that series (in the case of Subordinated Securities, whether or not such payment
is prohibited by the subordination provisions of the Subordinated Indenture);
(d) failure to perform any other covenants or warranties of the Corporation in
the Applicable Indenture (other than a covenant included in the Applicable
Indenture solely for the benefit of a series of Securities thereunder other than
that series) continued for 60 days after written notice as provided in the
Applicable Indenture; (e) the entry of a decree or order for relief in respect
of the Corporation by a court having jurisdiction in the premises in an
involuntary case under Federal or state bankruptcy laws and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; (f) the commencement by the Corporation of a voluntary case under Federal
or state bankruptcy laws or the consent by the Corporation to the entry of a
decree or order for relief in an involuntary case under any such law; (g) with
respect to Senior Securities only, unless otherwise provided in the Applicable
Prospectus Supplement, failure to pay when due or acceleration of Securities or
any other indebtedness for borrowed money, in an aggregate principal amount
exceeding $50,000,000, of the Corporation, a Principal Subsidiary or a Principal
Subsidiary Bank under the terms of the instrument or instruments under which
such indebtedness is issued or secured, unless such acceleration is annulled, or
such indebtedness is discharged, or there is deposited in trust a sum of money
sufficient to discharge such indebtedness, within 10 days after written notice
as provided in the Senior Indenture; and (h) any other Event of Default provided
with respect to Securities of that series. (Section 501)
Acceleration of Senior Securities. If an Event of Default with respect to
the Senior Securities of any series at the time Outstanding occurs and is
continuing, either the Senior Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Senior Securities of that series
may declare the principal amount (or, if the Senior Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of all the Senior Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Senior Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the Holders
of a majority in aggregate principal amount of Outstanding Senior Securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502 of the Senior Indenture)
Acceleration of Subordinated Securities. Unless specifically stated in
the Applicable Prospectus Supplement for a particular series of Subordinated
Securities, the payment of the principal of the Subordinated Securities may be
accelerated only upon the occurrence of an Event of Default described in clause
(e) or clause (f) of the first paragraph of this section (a "Bankruptcy Event of
Default") and there is no right of acceleration of the payment of principal of
the Subordinated Securities of such series upon a default in the payment of
principal, premium, if any, or interest, if any, or in the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture.
If a Bankruptcy Event of Default with respect to the Subordinated
Securities of any series at the time Outstanding occurs and is continuing,
either the Subordinated Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Subordinated Securities of that series may
declare the principal amount (or, if the Subordinated Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of all the Subordinated Securities of
that series to be due and payable immediately. At any time after a declaration
of acceleration with respect to Subordinated Securities of any series has been
made, but before a judgment or decree based on acceleration
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has been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Subordinated Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 502 of the
Subordinated Indenture)
General. In the event of a default in the payment of principal, premium,
if any, or interest, if any, or the performance of any covenant or agreement in
the Securities or the Indentures, the Applicable Trustee, subject to certain
limitations and conditions, may institute judicial proceedings to enforce
payment of such principal, premium, if any, or interest, if any, or to obtain
the performance of such covenant or agreement or any other proper remedy.
(Section 503) Under certain circumstances, the Applicable Trustee may withhold
notice to the Holders of the Securities in a default if the Applicable Trustee
in good faith determines that the withholding of such notice is in the best
interest of such Holders, and the Applicable Trustee shall withhold such notice
for certain defaults for a period of 30 days. (Section 602) Reference is made to
the Prospectus Supplement relating to any series of Offered Securities that are
Original Issue Discount Securities for the particular provisions relating to
acceleration of the Stated Maturity of a portion of the principal amount of such
series of Original Issue Discount Securities upon the occurrence of an Event of
Default and the continuation thereof.
The Indentures provide that, subject to the duty of the Applicable Trustee
during default to act with the required standard of care, the Applicable Trustee
will be under no obligation to exercise any of its rights or powers under the
Applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Applicable Trustee reasonable security or
indemnity. (Section 603) Subject to such provisions for the indemnification of
the Applicable Trustee and to certain other conditions, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Applicable Trustee, or exercising
any trust or power conferred on the Applicable Trustee, with respect to the
Securities of that series. (Section 512)
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Applicable Indenture, or for the appointment of a
receiver or trustee or for any remedy thereunder, unless such Holder shall have
previously given to the Applicable Trustee written notice of a continuing Event
of Default and unless the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series shall have made written request,
and offered reasonable indemnity, to the Applicable Trustee to institute such
proceeding as trustee, and such Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
(Section 508)
The Corporation is required to furnish to each Trustee annually a statement
as to the performance by the Corporation of certain of its obligations under the
Applicable Indenture and as to any default in such performance. (Section 1007 of
the Senior Indenture; Section 1005 of the Subordinated Indenture)
MODIFICATION AND WAIVER
Modification and amendment of the Indentures may be made by the Corporation
and the Applicable Trustee with the consent of the Holders of not less than a
66 2/3% in aggregate principal amount of the Outstanding Securities of each
series issued under the Applicable Indenture and affected by the modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holders of each Outstanding Security of the series
affected thereby (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security of such series; (b)
reduce the principal amount of or premium, if any, or interest on, any Security
of any series (including in the case of an Original Issue Discount Security the
amount payable upon acceleration of the maturity thereof); (c) change the place
or currency of payment of principal of or the premium, if any, or interest on
any Security of such series; (d) impair the right to institute suit for the
enforcement of any payment on any Security of such series on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date);
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(e) in the case of Subordinated Securities, modify the subordination provisions
in a manner adverse to the Holders of the Subordinated Securities of such
series; or (f) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Applicable Indenture or for waiver of
compliance with certain provisions of the Applicable Indenture or for waiver of
certain defaults. (Section 902)
The Holders of at least a 66 2/3% in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series of Securities, waive compliance by the Corporation with certain
restrictive provisions of the Applicable Indenture. (Section 1008 of the Senior
Indenture; Section 1006 of the Subordinated Indenture) The Holders of a majority
in aggregate principal amount of the Outstanding Securities of any series may,
on behalf of all Holders of that series of Securities, waive any past default
under the Applicable Indenture, except a default in the payment of principal,
premium, if any, or interest and in respect of certain covenants. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the Indentures, the Corporation may not consolidate with or merge
into any other corporation or sell, convey, exchange, transfer or lease its
properties and assets substantially as an entirety to any Person, unless (a) any
successor or purchaser is a corporation organized under the laws of any domestic
jurisdiction; (b) any such successor or purchaser expressly assumes the
Corporation's obligations on such Securities and under the Indentures; (c)
immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and (d) certain other conditions
are met. (Section 801)
ASSUMPTION BY SUBSIDIARY
A Subsidiary may assume the Corporation's obligations under the Senior
Indenture or the Subordinated Indenture (including the Corporation's obligation
to pay principal of and premium, if any, and interest on the Securities, but
excluding the Corporation's obligation to comply with certain covenants)
provided that (a) such Subsidiary expressly assumes the Corporation's
obligations under the Applicable Indenture; (b) the Corporation guarantees such
Subsidiary's obligations; (c) such Subsidiary agrees to indemnify each Holder
against certain taxes and expenses relating to, or incurred directly in
connection with, such assumption; (d) immediately after giving effect to the
assumption, no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have occurred and be
continuing; (e) certain Opinions of Counsel and Officers' Certificates are
delivered to the Applicable Trustee; and (f) certain other obligations are met.
(Section 803)
TRUSTEES
The Senior Trustee. The Chase Manhattan Bank is the Senior Trustee under
the Senior Indenture. The Chase Manhattan Bank maintains a deposit account and
conducts other banking transactions with the Corporation and its subsidiaries in
the ordinary course of business. The Senior Indenture provides for the
indemnification of the Senior Trustee by the Corporation under certain
circumstances.
The Subordinated Trustee. Mellon Bank, N.A. is the Subordinated Trustee
under the Subordinated Indenture. Mellon Bank, N.A. maintains a deposit account
and conducts other banking transactions with the Corporation and its
subsidiaries in the ordinary course of business, serves as trustee under the
indenture pursuant to which the 7% Subordinated Notes are outstanding and serves
as trustee with respect to the 6 3/8% Subordinated Notes, the 6.80% Subordinated
Notes and the 6.605% Subordinated Notes, which are outstanding pursuant to the
Subordinated Indenture. The Subordinated Indenture provides for the
indemnification of the Subordinated Trustee by the Corporation under certain
circumstances.
14
<PAGE> 17
PLAN OF DISTRIBUTION
The Corporation may offer and sell Securities to or through underwriters,
acting as principals for their own accounts or as agents, and also may offer and
sell Securities directly to other purchasers. Any underwriters or agents in
connection with Offered Securities will be named in the related Prospectus
Supplement and any underwriting compensation paid to such underwriters or agents
will be set forth therein. Such underwriters may include a single firm or may be
a group of underwriters represented by such firm. Unless otherwise indicated in
the Prospectus Supplement, any underwriters will be required to purchase all of
the Offered Securities if any are purchased.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Corporation and from purchasers of Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Under agreements which may be entered into with the Corporation,
underwriters, dealers and agents who participate in the distribution of the
Offered Securities may be entitled to indemnification by the Corporation against
certain liabilities, including liabilities under the Securities Act, or
contribution with respect to payments which the underwriters, dealers or agents
may be required to make in respect thereof. Underwriters, dealers and agents may
be customers of, engage in transactions with, or perform services for the
Corporation and its subsidiaries in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Corporation will
authorize dealers or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Securities from the
Corporation pursuant to delayed delivery contracts ("Contracts") providing for
payment and delivery on a future date or dates stated in the Prospectus
Supplement. Each Contract will be for an amount not less than, and the aggregate
amount of Offered Securities sold pursuant to Contracts shall not be less than
nor more than, the respective amounts stated in the Prospectus Supplement.
Institutions with which Contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Corporation. The obligations of any purchaser under any Contract
will not be subject to any conditions except that (a) the purchase of the
Offered Securities shall not at the time of delivery be prohibited under the
laws of any jurisdiction to which such purchaser is subject, and (b) if the
Offered Securities are also being sold to underwriters, the Corporation will
have sold to such underwriters the Offered Securities not sold for delayed
delivery. The dealers and such other persons acting as agents of the Corporation
will not have any responsibility in respect of the validity or performance of
Contracts.
EXPERTS
The consolidated financial statements of Wachovia Corporation and
subsidiaries at December 31, 1995 and 1994, and for each of the three years in
the period ended December 31, 1995, incorporated by reference in this Prospectus
and Registration Statement have been audited by Ernst & Young LLP, independent
auditors, as set forth in its report thereon and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
15
<PAGE> 18
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the
Corporation by Kenneth W. McAllister, General Counsel of the Corporation, and
for any underwriters or agents by King & Spalding, Atlanta, Georgia. As to
matters of Pennsylvania law, Mr. McAllister and King & Spalding will rely on the
opinion of Drinker Biddle & Reath, Philadelphia, Pennsylvania. From time to
time, King & Spalding has provided and may in the future provide legal services
to the Corporation and its subsidiaries.
16
<PAGE> 19
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE CORPORATION SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
Wachovia Corporation................... 2
Certain Regulatory Considerations...... 3
Consolidated Ratio of Earnings to Fixed
Charges.............................. 6
Use of Proceeds........................ 6
Description of Securities.............. 6
Plan of Distribution................... 15
Experts................................ 15
Legal Matters.......................... 16
</TABLE>
WACHOVIA CORPORATION
SENIOR DEBT SECURITIES
SUBORDINATED
DEBT SECURITIES
--------------------
PROSPECTUS
--------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
Securities being registered, other than underwriting compensation, are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................... $384,828
Blue Sky fees and expenses................................................ 20,000
Attorney's fees and expenses.............................................. 40,000
Accounting services....................................................... 20,000
Printing and engraving.................................................... 60,000
Fees of indenture trustee................................................. 64,000
Rating agency fees........................................................ 80,000
Miscellaneous............................................................. 15,000
--------
Total..................................................................... $683,828
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As permitted by the North Carolina Business Corporation Act (the "NCBCA"),
the Corporation's Articles of Incorporation provide that no director of the
Corporation will be held personally liable for monetary damages for such
director's breach of duty as a director. This limitation of liability does not
relieve directors from liability for (i) acts or omissions that the director at
the time of such breach knew or believed were clearly in conflict with the best
interests of the Corporation, (ii) any liability under Section 55-8-33 of the
NCBCA for unlawful distributions or other acts for which the director is
personally liable to the Corporation, (iii) any transaction from which the
director is adjudged to have derived an improper personal benefit, or (iv) acts
or omissions occurring prior to the date the provision in the Articles of
Incorporation became effective.
Pursuant to the North Carolina Business Corporation Act (the "NCBCA"),
Sections 55-8-50, et seq., as amended, a director may be indemnified against
liability and litigation expense, including reasonable attorneys' fees, arising
out of his status as such or his activities in such capacity, provided, however,
that such person (i) conducted himself in good faith; (ii) reasonably believed
(x) in the case of conduct in his official capacity with the Corporation, that
his conduct was in its best interests, and (y) in all other cases that his
conduct was at least not opposed to its best interests; and (iii) in the case of
any criminal proceeding, had no reason to believe his conduct was unlawful.
Mandatory indemnification is available under the NCBCA for a director who
is wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director of the
Corporation, against reasonable expenses incurred by him in connection with the
proceeding.
A corporation may not indemnify under the NCBCA in connection with any
proceeding by or in the right of a corporation in which the director was
adjudged liable to the corporation, or with any other proceeding charging
improper personal benefit to him, whether or not in connection with his official
capacity, in which he was adjudged liable on the basis that personal benefit was
improperly received by him. Where a proceeding is by or in the right of a
corporation, indemnification of a director is limited to reasonable expenses if
the proceeding is concluded without a final adjudication on the issue of
liability.
The NCBCA provides for an advance for expenses incurred by a director in
defending a proceeding. The expenses may be paid by a corporation in advance of
the final disposition of such proceeding as authorized by the board of directors
in specific cases or as authorized or required under any provision in the
articles of incorporation or bylaws or by any applicable resolution or contract
upon receipt of an undertaking by or on behalf of the director to repay such
amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation against such expenses.
II-1
<PAGE> 21
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
(1) -- Form of Underwriting Agreement.
(3)(a) -- Amended and Restated Articles of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 to the Corporation's Annual Report
on Form 10-K for the fiscal year ended December 31, 1993.
(3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1993.
(4)(a) -- Indenture dated as of August 15, 1996 between the Corporation and The Chase
Manhattan Bank, as Trustee, relating to the Senior Securities.
(4)(b) -- Indenture dated as of March 1, 1993 between the Corporation and CoreStates
Bank, National Association, as Trustee, relating to the Subordinated
Securities, incorporated by reference to Exhibits 4(a) to the Corporation's
Registration Statement on Form S-3 (Registration No. 33-59206).
(5)(a) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to
the legality of the Senior Securities.
*(5)(b) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to
the legality of the Subordinated Securities.
(12) -- Statement setting forth computation of ratios of earnings to fixed charges.
(23)(a) -- Consent of Ernst & Young LLP.
(23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the Corporation
(included in Exhibits 5(a) and 5(b)).
(24)(a) -- Powers of Attorney of Directors and Officers of the Corporation.
*(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to sign the
Registration Statement (File No. 333-6319) on behalf of the Corporation by
power of attorney.
24(c) -- Copy of the Corporation's resolutions authorizing its officers to sign the
Registration Statement (File No. 33-6280) on behalf of the Corporation by
power of attorney.
(25)(a) -- Statement of eligibility of the Trustee on Form T-1 with respect to the
Senior Securities.
*(25)(b) -- Statement of eligibility of the Trustee on Form T-1 with respect to the
Subordinated Securities.
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed
II-2
<PAGE> 22
with or provided to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of the Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of the Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to its Registration Statement on Form S-3 (File No. 333-6319) to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Winston-Salem, State of North Carolina, on August 13, 1996.
WACHOVIA CORPORATION
By: /s/ L. M. BAKER, JR.
------------------------------------
L. M. Baker, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons on behalf of the registrant and
in the capacities indicated, on August 13, 1996.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S>
/s/ L. M. BAKER, JR. President, Chief Executive
- --------------------------------------------- Officer and Director
L. M. Baker, Jr. (Principal Executive
Officer)
/s/ JOHN G. MEDLIN, JR. Chairman and Director
- ---------------------------------------------
John G. Medlin, Jr.
RUFUS C. BARKLEY, JR.* Director
- ---------------------------------------------
Rufus C. Barkley, Jr.
Director
- ---------------------------------------------
Crandall C. Bowles
JOHN L. CLENDENIN* Director
- ---------------------------------------------
John L. Clendenin
LAWRENCE M. GRESSETTE, JR.* Director
- ---------------------------------------------
Lawrence M. Gressette, Jr.
THOMAS K. HEARN, JR.* Director
- ---------------------------------------------
Thomas K. Hearn, Jr.
W. HAYNE HIPP* Director
- ---------------------------------------------
W. Hayne Hipp
ROBERT M. HOLDER, JR.* Director
- ---------------------------------------------
Robert M. Holder, Jr.
DONALD R. HUGHES* Director
- ---------------------------------------------
Donald R. Hughes
JAMES W. JOHNSTON* Director
- ---------------------------------------------
James W. Johnston
</TABLE>
II-4
<PAGE> 24
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S>
Director
- ---------------------------------------------
Wyndham Robertson
HERMAN J. RUSSELL* Director
- ---------------------------------------------
Herman J. Russell
SHERWOOD H. SMITH, JR.* Director
- ---------------------------------------------
Sherwood H. Smith, Jr.
CHARLES McKENZIE TAYLOR* Director
- ---------------------------------------------
Charles McKenzie Taylor
JOHN C. WHITAKER, JR.* Director
- ---------------------------------------------
John C. Whitaker, Jr.
ROBERT S. McCOY, JR.* Executive Vice President and
- --------------------------------------------- Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial
Officer)
DONALD K. TRUSLOW* Comptroller (Principal
- --------------------------------------------- Accounting Officer)
Donald K. Truslow
*By: /s/ ALICE WASHINGTON GROGAN
-----------------------------------------
Alice Washington Grogan
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to its Registration Statement on Form S-3 (File No. 33-6280) to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Winston-Salem, State of North Carolina, on August 13, 1996.
WACHOVIA CORPORATION
By: /s/ L. M. BAKER, JR.
------------------------------------
L. M. Baker, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons on behalf of the registrant and
in the capacities indicated, on August 13, 1996.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S>
/s/ L. M. BAKER, JR. President, Chief Executive
- --------------------------------------------- Officer and Director
L. M. Baker, Jr. (Principal Executive
Officer)
/s/ JOHN G. MEDLIN, JR. Chairman and Director
- ---------------------------------------------
John G. Medlin, Jr.
RUFUS C. BARKLEY, JR.* Director
- ---------------------------------------------
Rufus C. Barkley, Jr.
Director
- ---------------------------------------------
Crandall C. Bowles
JOHN L. CLENDENIN* Director
- ---------------------------------------------
John L. Clendenin
LAWRENCE M. GRESSETTE, JR.* Director
- ---------------------------------------------
Lawrence M. Gressette, Jr.
THOMAS K. HEARN, JR.* Director
- ---------------------------------------------
Thomas K. Hearn, Jr.
W. HAYNE HIPP Director
- ---------------------------------------------
W. Hayne Hipp
ROBERT M. HOLDER, JR.* Director
- ---------------------------------------------
Robert M. Holder, Jr.
DONALD R. HUGHES* Director
- ---------------------------------------------
Donald R. Hughes
JAMES W. JOHNSTON* Director
- ---------------------------------------------
James W. Johnston
</TABLE>
II-6
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S>
Director
- ---------------------------------------------
Wyndham Robertson
HERMAN J. RUSSELL* Director
- ---------------------------------------------
Herman J. Russell
SHERWOOD H. SMITH, JR.* Director
- ---------------------------------------------
Sherwood H. Smith, Jr.
CHARLES McKENZIE TAYLOR* Director
- ---------------------------------------------
Charles McKenzie Taylor
JOHN C. WHITAKER, JR.* Director
- ---------------------------------------------
John C. Whitaker, Jr.
ROBERT S. McCOY, JR.* Executive Vice President and
- --------------------------------------------- Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial
Officer)
DONALD K. TRUSLOW* Comptroller (Principal
- --------------------------------------------- Accounting Officer)
Donald K. Truslow
By: /s/ ALICE WASHINGTON GROGAN
-----------------------------------------
Alice Washington Grogan
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. PAGE NO.
- --------- -----------
<S> <C> <C> <C>
(1) -- Form of Underwriting Agreement....................................
(3)(a) -- Amended and Restated Articles of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended December 31,
1993..............................................................
(3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit
3.2 to the Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993......................................
(4)(a) -- Indenture dated as of August 15, 1996 between the Corporation and
The Chase Manhattan Bank, as Trustee, relating to the Senior
Securities........................................................
(4)(b) -- Indenture dated as of March 1, 1993 between the Corporation and
CoreStates Bank, National Association, as Trustee, relating to the
Subordinated Securities, incorporated by reference to Exhibit 4(a)
to the Corporation's Registration Statement on Form S-3
(Registration No. 33-59206).......................................
(5)(a) -- Opinion of Kenneth W. McAllister, General Counsel of the
Corporation, as to the legality of the Senior Securities..........
*(5)(b) -- Opinion of Kenneth W. McAllister, General Counsel of the
Corporation, as to the legality of the Subordinated Securities....
(12) -- Statement setting forth computation of the ratio of earnings to
fixed charges.....................................................
(23)(a) -- Consent of Ernst & Young LLP......................................
(23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the
Corporation (included in Exhibits 5(a) and 5(b))..................
(24)(a) -- Powers of Attorney of Directors and Officers of the Corporation...
*(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to
sign the Registration Statement (File No. 333-6319) on behalf of
the Corporation by power of attorney..............................
24(c) -- Copy of the Corporation's resolutions authorizing its officers to
sign the Registration Statement (File No. 33-6280) on behalf of
the Corporation by power of attorney..............................
(25)(a) -- Statement of eligibility of the Trustee on Form T-1 with respect
to the Senior Securities..........................................
*(25)(b) -- Statement of eligibility of the Trustee on Form T-1 with respect
to the Subordinated Securities....................................
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT 1
WACHOVIA CORPORATION
---------------------
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I hereto of the
Underwriters named in Schedule II hereto
Dear Sirs:
Wachovia Corporation, a North Carolina corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture identified
in Schedule I hereto (the "Indenture"), between the Company and the trustee
identified in Schedule I hereto (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective. The
offering of the Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the rules
thereunder to be included therein as of the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and 424(b)(2)
or (5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including a
<PAGE> 2
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either
(x) a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in such
Registration Statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Final Prospectus with respect
to the Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time, or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or 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; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material respects with the requirements of the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which constitutes or shall constitute the Statement
of Eligibility and Qualification ("Form T-1") under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or becomes effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the
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<PAGE> 3
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction
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<PAGE> 4
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an
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<PAGE> 5
amendment or supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemental Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 p.m. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Kenneth W. McAllister, General Counsel for the Company, or of
other counsel for the Company satisfactory to the Representatives, dated
the Closing Date, to the effect that:
(i) the Company and each of South Carolina National Corporation,
Wachovia Bank of North Carolina, N.A., Wachovia Bank of Georgia, N.A.
and Wachovia Bank of South Carolina, N.A., (individually a "Subsidiary"
and collectively the "Subsidiaries") has been duly incorporated or
organized and is validly existing as a corporation or banking
association in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases material
properties or conducts material business; and the Company is duly
registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended;
(ii) all outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
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<PAGE> 6
Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly-owned subsidiaries 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;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform to the description
thereof contained in the Final Prospectus; and, if the Securities are to
be listed on any securities exchange or automated quotation system,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such securities exchange
and such counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and, as to rights of acceleration and the enforcement
or remedies to general principles of equity); and the Securities have
been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and, as to rights of acceleration and the enforcement
of remedies to general principles of equity);
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit, which is not described
or filed as required; and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or material contracts
or agreements relating to the Company fairly summarize such matters in
all material respects;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and statistical
information contained therein and the Statement of Eligibility and
Qualification of the Trustee as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
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<PAGE> 7
(viii) any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally from time to time in effect and, as to rights of acceleration
and the enforcement of remedies to general principles of equity);
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Delayed Delivery Contracts
will conflict with, result in a breach or violation of, or constitute a
default under any law or the articles of incorporation or by-laws of the
Company or the terms of any indenture, contract or other agreement or
instrument known to such counsel and to which the Company or any of its
subsidiaries is a party or bound and which is material to the Company,
or any order or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of North Carolina or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from King & Spalding,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President of the Company and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
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<PAGE> 8
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and that they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information in accordance with, and as described in, Statement of
Accounting Standards No. 71 for the latest unaudited financial statements
in or incorporated in the Registration Statement or the Final Prospectus
and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and any pro forma financial statement of the Company
and its subsidiaries included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants under Statement of Accounting
Standards No. 71 of the unaudited interim financial information of the
Company and its subsidiaries; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, the board of directors and
the executive, finance, audit, pension and compensation committees of
the board of directors of the Company and of certain of the
Subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or incorporated
in the Registration Statement and the Final Prospectus do not comply
in form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement and
the Final Prospectus; or
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days prior
to the date of the letter, in the long-term debt (including capital
lease obligations) of the Company and its subsidiaries or capital
stock of the Company (other than issuances of capital stock upon
exercise of options and stock appreciation plans which were
outstanding on the date of the latest consolidated balance sheet
included or incorporated in the Registration Statement and the Final
Prospectus) or decreases in the shareholders' equity of the Company
as compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement
and the Final
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Prospectus, or for the period from the date of the most recent
financial statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year, in net interest income, net interest income after
provision for loan losses or in income before income taxes, or in the
total or per-share amount of net income of the Company and its
subsidiaries, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; or
(3) the information included in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated in the
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Ernst & Young LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by Moody's
Investors Service, Inc. or Standard & Poor's Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
9
<PAGE> 10
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic Prospectus or
any Preliminary Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sales of Securities
pursuant to
10
<PAGE> 11
delayed delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; 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 defend 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 appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
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). An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (z) 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
11
<PAGE> 12
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal, Georgia, North Carolina, South Carolina or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 301 North Main Street, Winston Salem, North Carolina 27150,
attention of Kenneth W. McAllister.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of laws.
12
<PAGE> 13
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the several Underwriters.
Very truly yours,
WACHOVIA CORPORATION
By: ---------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[Name of Representatives]
By:
By: ----------------------------------
Name:
Title:
For themselves and as
Representatives of the other
several Underwriters, if any,
named in Schedule II hereto.
13
<PAGE> 14
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Indenture/trustee:
Other provisions:
Closing Date, Time and Location:
Closing Date:
Time:
Location:
Type of Offering:
Payment of Funds:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to Section 5(e)
at the Execution Time:
S-1
<PAGE> 15
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
- ----------------------------------------------------------------------------- ----------------
<S> <C>
----------------
Total..............................................................
=============
</TABLE>
S-2
<PAGE> 16
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Wachovia Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on
, 19 , (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's
Prospectus dated , 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ,
19 , to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 a.m., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
S-3
<PAGE> 17
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By:
------------------------------------
(Signature and Title of Officer)
--------------------------------------
(Address)
Accepted:
Wachovia Corporation
By:
--------------------------------
(Authorized Signature)
S-4
<PAGE> 1
EXHIBIT 4(A)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
WACHOVIA CORPORATION
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
------------------------
INDENTURE
DATED AS OF AUGUST 15, 1996
------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
WACHOVIA CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF AUGUST 15, 1996
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
<S> <C>
Section 310(a)(1)............................ 609
(a)(2)........................... 609
(a)(3)........................... Not Applicable
(a)(4)........................... Not Applicable
(b).............................. 608, 610
Section 311(a)............................... 613
(b).............................. 613
Section 312(a)............................... 701, 702(a)
(b).............................. 702(b)
(c).............................. 702(c)
Section 313(a)............................... 703(a)
(b).............................. 703(b)
(c).............................. 703(a), 703(b)
(d).............................. 703(c)
Section 314(a)............................... 704
(b).............................. Not Applicable
(c)(1)........................... 102
(c)(2)........................... 102
(c)(3)........................... Not Applicable
(d).............................. Not Applicable
(e).............................. 102
Section 315(a)............................... 601(a)
(b).............................. 602
(c).............................. 601(b)
(d).............................. 601(c)
(d)(1)........................... 601(a)(1)
(d)(2)........................... 601(c)(2)
(d)(3)........................... 601(c)(3)
(e).............................. 514
Section 316(a)............................... 101
(a)(1)(A)........................ 502, 512
(a)(1)(B)........................ 513
(a)(2)........................... Not Applicable
(b).............................. 508
Section 317(a)(1)............................ 503
(a)(2)........................... 504
(b).............................. 1003
Section 318(a)............................... 107
</TABLE>
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
i
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Parties....................................... 1
Recitals of the Company....................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:.................................. 1
Act........................................... 2
Affiliate; control............................ 2
Authenticating Agent.......................... 2
Board of Directors............................ 2
Board Resolution.............................. 2
Book-Entry Security........................... 2
Business Day.................................. 2
Commission.................................... 3
Company....................................... 3
Company Request; Company Order................ 3
Corporate Trust Office........................ 3
corporation................................... 3
Defaulted Interest............................ 3
Depositary.................................... 3
Event of Default.............................. 3
Holder........................................ 4
Indenture..................................... 4
interest...................................... 4
Interest Payment Date......................... 4
Maturity...................................... 4
Officers' Certificate......................... 4
Opinion of Counsel............................ 4
Original Issue Discount Security.............. 4
Outstanding................................... 4
Paying Agent.................................. 6
Person........................................ 6
Place of Payment.............................. 6
</TABLE>
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
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<S> <C> <C>
Predecessor Security.......................... 6
Primary Federal Regulator..................... 6
Principal Subsidiary; Principal Subsidiary
Bank.......................................... 6
Redemption Date............................... 6
Redemption Price.............................. 6
Regular Record Date........................... 7
Responsible Officer........................... 7
Securities.................................... 7
Security Register; Security Registrar;
Co-Security Registrar....................... 7
Special Record Date........................... 7
Stated Maturity............................... 7
Subsidiary; Subsidiary Bank................... 7
Trustee....................................... 7
Trust Indenture Act........................... 7
Vice President................................ 8
Voting Stock.................................. 8
Section 102. Compliance Certificates and Opinions.......... 8
Section 103. Form of Documents Delivered to Trustee........ 9
Section 104. Acts of Holders............................... 9
Section 105. Notices, Etc., to Trustee and Company......... 10
Section 106. Notice to Holders; Waiver..................... 10
Section 107. Conflict With Trust Indenture Act............. 11
Section 108. Effect of Headings and Table of Contents...... 11
Section 109. Successors and Assigns........................ 11
Section 110. Separability Clause........................... 11
Section 111. Benefits of Indenture......................... 11
Section 112. Governing Law................................. 12
Section 113. Legal Holidays................................ 12
ARTICLE TWO
Security Forms
Section 201. Forms Generally............................... 12
Section 202. Form of Face of Security...................... 13
Section 203. Form of Reverse of Security................... 16
Section 204. Form of Trustee's Certificate of
Authentication.............................. 20
Section 205. Issuance of Book-Entry Securities............. 20
</TABLE>
<PAGE> 5
iii
<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.......... 21
Section 302. Denominations................................. 23
Section 303. Execution, Authentication, Delivery and
Dating...................................... 23
Section 304. Temporary Securities.......................... 25
Section 305. Registration, Registration of Transfer
and Exchange................................ 25
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................. 28
Section 307. Payment of Interest; Interest Rights
Preserved................................... 29
Section 308. Persons Deemed Owners......................... 31
Section 309. Cancellation.................................. 31
Section 310. Computation of Interest....................... 31
Section 311. Regarding Beneficial Ownership Interests in
Book-Entry Securities....................... 31
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture....... 32
Section 402. Application of Trust Money.................... 33
ARTICLE FIVE
Remedies
Section 501. Events of Default............................. 33
Section 502. Acceleration of Maturity; Rescission
and Annulment............................... 35
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.................. 36
Section 504. Trustee May File Proofs of Claim.............. 37
Section 505. Trustee May Enforce Claims Without
Possession of Securities.................... 38
Section 506. Application of Money Collected................ 38
Section 507. Limitation on Suits........................... 39
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest............. 39
Section 509. Restoration of Rights and Remedies............ 40
Section 510. Rights and Remedies Cumulative................ 40
Section 511. Delay or Omission Not Waiver.................. 40
Section 512. Control by Holders............................ 40
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 513. Waiver of Past Defaults....................... 41
Section 514. Undertaking for Costs......................... 41
Section 515. Waiver of Stay or Extension Laws.............. 42
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........... 42
Section 602. Notice of Defaults............................ 43
Section 603. Certain Rights of Trustee..................... 44
Section 604. Not Responsible for Recitals or
Issuance of Securities...................... 45
Section 605. May Hold Securities........................... 45
Section 606. Money Held in Trust........................... 45
Section 607. Compensation and Reimbursement................ 46
Section 608. Disqualification; Conflicting Interests....... 46
Section 609. Corporate Trustee Required; Eligibility....... 46
Section 610. Resignation and Removal; Appointment of
Successor................................... 47
Section 611. Acceptance of Appointment by Successor........ 49
Section 612. Merger, Conversion, Consolidation or
Succession to Business...................... 50
Section 613. Preferential Collection of Claims Against
Company..................................... 51
Section 614. Appointment of Authenticating Agent........... 51
ARTICLE SEVEN
Lists of Holders and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.................................. 53
Section 702. Preservation of Information; Communications to
Holders..................................... 53
Section 703. Reports by Trustee............................ 54
Section 704. Reports by Company............................ 54
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain
Terms....................................... 55
Section 802. Successor Corporation Substituted............. 55
</TABLE>
<PAGE> 7
v
<TABLE>
<CAPTION>
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<S> <C> <C>
Section 803. Assumption by Subsidiary of Company's
Obligations................................. 56
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent
of Holders.................................. 58
Section 902. Supplemental Indentures With Consent of
Holders..................................... 59
Section 903. Execution of Supplemental Indentures.......... 60
Section 904. Effect of Supplemental Indentures............. 61
Section 905. Conformity With Trust Indenture Act........... 61
Section 906. Reference in Securities to Supplemental
Indentures.................................. 61
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.... 61
Section 1002. Maintenance of Office or Agency............... 61
Section 1003. Money for Securities Payments to be Held
in Trust.................................... 62
Section 1004. Corporate Existence........................... 64
Section 1005. Limitation Upon Disposition of Capital Stock
of a Principal Subsidiary Bank or Principal
Subsidiary.................................. 64
Section 1006. Limitation Upon Liens on Certain Capital
Stock....................................... 65
Section 1007. Statements as to Compliance................... 65
Section 1008. Waiver of Certain Covenants................... 65
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article...................... 66
Section 1102. Election to Redeem; Notice to Trustee......... 66
Section 1103. Selection by Trustee of Securities to be
Redeemed.................................... 66
Section 1104. Notice of Redemption.......................... 67
Section 1105. Deposit of Redemption Price................... 68
Section 1106. Securities Payable on Redemption Date......... 68
Section 1107. Securities Redeemed in Part................... 68
</TABLE>
<PAGE> 8
vi
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article...................... 69
Section 1202. Satisfaction of Sinking Fund Payments
With Securities............................. 69
Section 1203. Redemption of Securities for Sinking Fund..... 69
ARTICLE THIRTEEN
Holders' Meetings
Section 1301. Purposes for Which Meeting May be Called...... 70
Section 1302. Manner of Calling Meetings.................... 70
Section 1303. Call of Meetings by Company or Holders........ 71
Section 1304. Who May Attend and Vote at Meetings........... 71
Section 1305. Regulations May be Made by Trustee............ 71
Section 1306. Evidence of Actions by Holders................ 72
Section 1307. Exercise of Rights of Trustee and Holders Not
to be Hindered or Delayed................... 72
</TABLE>
<PAGE> 9
INDENTURE, dated as of August 15, 1996, between WACHOVIA CORPORATION, a
corporation duly organized and existing under the laws of the State of North
Carolina (herein called the "Company"), having its principal office at 100 North
Main Street, Winston-Salem, North Carolina 27101, and THE CHASE MANHATTAN BANK,
a banking corporation duly organized and existing under the laws of the State of
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
<PAGE> 10
2
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; and
(4) the words "herein", "hereof", and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company,
any duly authorized committee of that board or any officer of the Company duly
authorized by the board of directors of the Company or a duly authorized
committee of that board to take a specified action or make a specified
determination (the authorization of such officer being evidenced by a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the board of directors of the Company or a duly
authorized committee of that board and to be in full force and effect on the
date of such certification and delivered to the Trustee).
"Board Resolution" means a copy of a resolution or action certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted or
taken by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in Section
205 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
its nominee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
<PAGE> 11
3
on which banking institutions in that Place of Payment are generally authorized
or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter, "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Vice Chairman or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Comptroller, an Assistant Comptroller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 450 West
33rd Street, Fifteenth Floor, New York, New York 10001-2697, Attention: Global
Trust Services; except, that, with respect to presentation of Securities for
registration of transfer and exchange, and the location of the Securities
Register, such term means the office or agency of the Security Registrar in said
Borough, at which at any particular time its corporate agency business shall be
conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Book-Entry Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have been appointed pursuant to Section 305, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Event of Default" has the meaning specified in Section 501.
<PAGE> 12
4
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice Chairman or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary
or an Assistant Secretary of the Company, or a Subsidiary, as the case may be,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or who may be other counsel satisfactory
to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own
<PAGE> 13
5
Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502; (ii) the principal amount of a Security
denominated in a foreign currency or currencies shall be the U.S. dollar
equivalent, determined on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security; and (iii)
Securities owned by or held for the account of the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned or so held which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Securities, if any, known
by the Company to be owned by or held for the account of the Company or any
other obligor upon the Securities, or any Affiliate of the Company or of such
obligor and the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein and not otherwise excluded from
<PAGE> 14
6
the provisions hereof are Outstanding for the purposes of any such
determination.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Primary Federal Regulator" means the Company's primary federal banking
regulator (which at the date of this Indenture is the Board of Governors of the
Federal Reserve System), or any successor body or institution performing
substantially the same regulatory function with respect to the Company and to
the adequacy of its capital as said Board of Governors performs on the date
hereof.
"Principal Subsidiary; Principal Subsidiary Bank" means any Subsidiary or
Subsidiary Bank, the consolidated assets of which constitute 10 percent or more
of the assets of the Company and which, in the case of a Principal Subsidiary,
owns shares of a Principal Subsidiary Bank.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
<PAGE> 15
7
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the trust committee, any vice president, any assistant vice
president, secretary, assistant secretary, managing director, treasurer, or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to any
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register", "Security Registrar" and "Co-Security Registrar" have
the respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary; Subsidiary Bank" means a corporation, state banking
corporation or national banking association more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
<PAGE> 16
8
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock", means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of the subject corporation, state banking
corporation or national banking association (irrespective of whether or not at
the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
<PAGE> 17
9
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
<PAGE> 18
10
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its General Counsel at 100 North Main Street,
Winston-Salem, North Carolina 27101 or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than
<PAGE> 19
11
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereun-
<PAGE> 20
12
der, the holders of Senior Indebtedness and Additional Senior Obligations and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in accordance with the
laws of the State of New York and, unless the laws of another jurisdiction are
specified pursuant to Section 301, the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order
<PAGE> 21
13
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
[If the Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND
THE ISSUE DATE IS __________ , ____.]
<PAGE> 22
14
WACHOVIA CORPORATION
------------------------------
DUE ____________
No. __________ $ __________
WACHOVIA CORPORATION, a North Carolina corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum of
____________________ Dollars on ____________________ [If the Security is to bear
interest prior to Maturity, insert--, and to pay interest thereon from
__________, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on ____________________ and
____________________ in each year, commencing ____________________, at the rate
of __________% per annum, [If applicable, insert method of calculation of
floating rate,] until the principal hereof is paid or made available for payment
[If applicable, insert--, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of __% per annum on any overdue
principal and premium and on any overdue instalment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
__________ or __________ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert-- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
<PAGE> 23
15
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the offices or
agencies of the Trustee maintained for that purpose in New York, New York
[describe relevant currency] [if applicable, insert--; provided, however, that
at the option of the Company payment of interest may be made by check drawn upon
any Paying Agent and mailed on or prior to an Interest Payment Date to the
address of the Person entitled thereto as such address shall appear in the
Security Register.]
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an authenticating
agent, by the manual signature of an authorized signer, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
WACHOVIA CORPORATION
By
[Seal] -------------------------
Attest:
- -------------------------
<PAGE> 24
16
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of August 15, 1996 (herein called the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$ __________ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, [if applicable,
insert--(1) on ____________________ in any year commencing with the year ____
and ending with the year ____ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after __________ , ____ ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
____________________ , ____% and if redeemed] during the 12-month period
beginning ____________________ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- --------------- --------------- --------------- ---------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [If applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days notice by mail, (1) on
____________________ in any year commencing with the year __________ and ending
with the
<PAGE> 25
17
year __________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ________ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
- ---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to __________,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
______________ in each year beginning with the year ____ and ending with the
year ____ of [not less than] $________ [("mandatory sinking fund") and not more
than $________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made.]
<PAGE> 26
18
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of the Indenture or of this Security)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
The indebtedness evidenced by this Security is unsecured and is issued
subject to the provisions of the Indenture. Each Holder of this Security, by
accepting the same, agrees to and shall be bound by such provisions.
[If the Security is not an Original Issue Discount Security,--If a
Bankruptcy Event of Default (as defined in the Indenture) with respect to the
Company shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security,--If a Bankruptcy
Event of Default (as defined in the Indenture) with respect to the Company shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
<PAGE> 27
19
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $____________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Indenture provides that a Subsidiary may assume the obligations of the
Company under the Indenture and the Securities, subject to the satisfaction of
certain conditions, including the Company's guaranteeing of the Subsidiary's
obligations under this Security and the Indenture.
<PAGE> 28
20
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
By
---------------------------
[NAME OF TRUSTEE]
as Trustee
SECTION 205. Issuance of Book-Entry Securities.
Any Book-Entry Security authenticated and issued hereunder shall, in
addition to the provisions contained in Section 202 and 203, bear a legend in
substantially the following form, subject to modification by the Depositary:
"This Security is a Book-Entry 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 exchangeable for
Securities registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture
and may not be transferred except 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."
Any Book-Entry Security issued hereunder may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate may from time to time
be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated Securities of such series. Any endorsement of a Book-
Entry Security to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the
<PAGE> 29
21
Trustee and in such manner as shall be specified in such Security or the Company
Order to be delivered to the Trustee pursuant to Section 303. Any instructions
by the Company with respect to a Book-Entry Security, after its initial
issuance, shall be in writing but need not comply with Section 102.
Each Depositary designated pursuant to Section 301 for a Book-Entry
Security must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934 and any other applicable statute or regulation.
Book-Entry Securities may be issued only in registered form and in either
temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
<PAGE> 30
22
(5) the place or places, if any, in addition to New York, New York
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on the
Securities of the series shall be payable if other than the currency of the
United States of America;
(10) if the amount or payments of principal of and any premium or
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(12) if other than the law of the State of New York, the law which
will govern the terms of the Securities;
(13) the form of the Securities, and the extent, if any, to which any
of the Securities will be issuable in Book-Entry form and, in such case,
the Depositary for such Book-Entry Security or Securities, and the terms
and conditions, if any, upon which such Book-Entry Security may be
exchanged in whole or in part for definitive Securities, if other than as
set forth in Section 305; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
<PAGE> 31
23
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Securities Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President
or one of its Executive Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board
<PAGE> 32
24
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Book-Entry Securities, then the Company shall execute and the Trustee shall, in
<PAGE> 33
25
accordance with this Section and a Company Order for the authentication and
delivery of such Book-Entry Securities with respect to such series, authenticate
and deliver one or more Book-Entry Securities in permanent or temporary form
that (i) shall represent and shall be denominated in an aggregate amount equal
to the aggregate principal amount of the Outstanding Securities of such series
to be represented by one or more Book-Entry Securities, (ii) shall be registered
in the name of the Depositary for such Book-Entry Security or Securities or the
nominee of such Depositary and (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security Registrar
designated pursuant to this Section 305 or Section 1002 a register (being the
combined register of the Security Registrar and any Co-Security Registrars and
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
<PAGE> 34
26
shall provide for the registration of Securities and for transfers of
Securities. The Trustee is hereby initially appointed "Security Registrar" for
the purpose of registering Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Security Registrar or any
Co-Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or such Co-Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Neither the Company, the Security Registrar nor any Co-Security Registrar
shall be required (i) to issue, register the transfer of or exchange Securities
of any series during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Securities of that
series selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
<PAGE> 35
27
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 205, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 301(13) shall
no longer be effective with respect to the Securities of such series and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Book-Entry Security or Securities representing such series in exchange
for such Book-Entry Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Book-Entry Securities
shall no longer be represented by such Book-Entry Security or Securities. In
such event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities representing such
series in exchange for such Book-Entry Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, or if an Event of Default, or an event which with notice,
lapse of time or both would be an Event of Default with respect to the
Securities of such series has occurred and is continuing, a Person owning a
beneficial interest in a Book-Entry Security for Securities of such series may
instruct the Depositary for such series of Securities to surrender such Book-
Entry Security for such series of Securities in exchange in whole or in part for
Securities of such series of like tenor in definitive registered form.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge:
(a) to the Person specified by such Depositary a new Security or
Securities of the same series, of like tenor, of any authorized denomina-
<PAGE> 36
28
tion as requested by such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the Book-Entry
Security; and
(b) to such Depositary a new Book-Entry Security of like tenor in an
authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Book-Entry Security and the aggregate
principal amount of Securities delivered pursuant to clause (a) above.
Upon the exchange of a Book-Entry Security for Securities in definitive
form, such Book-Entry Security shall be cancelled by the Trustee. Securities
issued in exchange for a Book-Entry Security pursuant to this Section shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Book-Entry Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered or to the
Depositary.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive registered form, a
Book-Entry Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless
then the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
<PAGE> 37
29
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted
<PAGE> 38
30
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date thereof to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
<PAGE> 39
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes,
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise contemplated by Section 301 for Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a year of twelve 30-day months.
SECTION 311. Regarding Beneficial Ownership Interests in Book-Entry Securities.
Neither the Company, the Trustee, any Authenticating Agent, any Paying
Agent nor the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Book-Entry Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
<PAGE> 40
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to (i) remaining rights of registration of transfer, substitution and
exchange of Securities, (ii) rights hereunder of Holders to receive payments of
principal of (and premium, if any) and interest on the Securities, and other
rights, duties and obligations of the Holders as beneficiaries hereof with
respect to the amounts, if any, so deposited with the Trustee, and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not thereto fore delivered to the Trustee
for cancellation (i) have become due and payable, or (ii) will become
due and payable at their Stated Maturity within one year, or (iii) are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company; and the
Company, in the case of (i), (ii), or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
<PAGE> 41
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
<PAGE> 42
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by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of a least
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or a Principal Subsidiary or
Principal Subsidiary Bank (including this Indenture), whether such
indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness, in an aggregate principal amount
exceeding $50,000,000, becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, or there having been deposited in trust a sum of
money sufficient to discharge in full such indebtedness, or failure to pay
when due any such indebtedness in such amount within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and stating that such
notice is a "Notice of
<PAGE> 43
35
Default" hereunder; provided, however, that, subject to the provisions of
Section 601 and 602, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(6) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal or state bankruptcy laws, as now or hereafter
constituted, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case under the
Federal or state bankruptcy laws, as now or hereafter constituted, or the
consent by the Company to the entry of a decree or order for relief in an
involuntary case under any such law; or
(8) any other Event of Default provided with respect to Securities of
such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
<PAGE> 44
36
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
<PAGE> 45
37
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including and claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
<PAGE> 46
38
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorized the Trustee to
authorized or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of the Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereof of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee hereunder; and
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably,
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39
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and
<PAGE> 48
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to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee, and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or
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interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities of
such series, such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities of any series
has occurred and is continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
<PAGE> 51
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prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect to
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the Direction
of the Holders of majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
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the Trustee in good faith determines that the withholding of such notice is in
the interest of the Holders of Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
<PAGE> 53
45
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity of
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
<PAGE> 54
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of any express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and its officers and directors for, and
to hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of the powers or duties of the Trustee hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except for funds
held in trust for the benefit of the Holders of Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default hereunder, the fees, charges, expenses and indemnities provided
for in this Section 607 (including the charges of Trustee's counsel) are
intended to constitute expenses of the administration under any applicable
Federal or state bankruptcy, insolvency or other similar law.
The provision of this Section 607 shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee, any Paying Agent
or any Authenticating Agent, as the case may be.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation which satisfies the requirements of Section 310(a) of the Trust
Indenture Act and which has a combined capital and surplus of not less than
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
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48
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal, or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
<PAGE> 57
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Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
(g) Upon the appointment of a successor Trustee (except pursuant to Section
612), all fees, charges and expenses to date of the retiring Trustee shall
become immediately due and payable.
(h) The retiring Trustee shall have no liability for the acts or omissions
of any successor Trustee hereunder except with respect to successors pursuant to
Section 612.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer, and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change
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50
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
<PAGE> 59
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Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or of any other obligor on the Securities,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company or any such other obligor
on the Securities.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent
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shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
The provisions of Sections 308, 603, 604, 605, 607 and 612 shall be
applicable to each Authenticating Agent.
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Pursuant to each appointment made under this Section, the Securities of
each series covered by such appointment may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[NAME OF TRUSTEE]
As Trustee
By:
--------------------------------
As Authenticating Agent
By:
--------------------------------
Authorized Officer
ARTICLE SEVEN
LISTS OF HOLDERS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Co-Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
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addresses of Holders received by the Trustee in its capacity as Co-Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year 1997,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 that
complies with the Trust Indenture Act.
(b) The Trustee shall transmit by mail to all Holders such other reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
<PAGE> 63
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or sell, convey, exchange, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the effect as if such
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successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
SECTION 803. Assumption by Subsidiary of Company's Obligations.
A Subsidiary may assume the obligations of the Company for the due and
punctual payment of the principal of (and premium, if any) and interest on the
Securities and the performance of the Company's other obligations under this
Indenture and the Securities (except its obligations under Section 1004, which,
as contemplated by Subsection (2) below, shall continue to bind the Company), to
be performed or observed, provided that:
(1) such Subsidiary shall expressly assume such obligations by an
indenture supplemental hereto, executed and delivered to the Trustee;
(2) the Company shall guarantee the obligations of such Subsidiary
under the Securities and this Indenture, which guarantee shall also include
an undertaking by the Company to continue to comply with the covenants set
forth in Section 1004;
(3) in addition to assuming obligations under the Securities and this
Indenture, such Subsidiary shall agree to indemnify the Holder of each
Security against (a) any tax, assessment or governmental charge imposed as
a result of or relating to the act of such assumption and (b) costs or
expenses incurred directly in connection with the act of assumption;
(4) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(5) the Company shall deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, to the effect that (a) such assumption, (b) such
guarantee and (c) such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
assumption have been complied with and such supplemental indenture and
guarantee by the Company have been duly authorized and delivered by the
Company, and each constitutes a valid and legally binding instrument of the
Company, enforceable in accordance with its terms subject to bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally, and subject, as
to enforcement, to general principles of equity, and any other customary
exceptions which such counsel states do not
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materially prejudice the rights of the Holders under this Indenture and the
Securities; and
(6) such Subsidiary shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (a) such
Subsidiary has obtained all governmental and regulatory approvals and
consents necessary for its assumption of liability as principal debtor in
respect of the Securities in place of the Company; (b) such approvals and
consents are at the time of assumption in full force and effect; and (c)
such supplemental indenture has been duly authorized and delivered by such
Subsidiary, constitutes a valid and legally binding instrument of such
Subsidiary, enforceable in accordance with its terms subject to bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally and subject, as to
enforcement, to general principles of equity, and any other customary
exceptions which such counsel states do not materially prejudice the rights
of the Holders under this Indenture and the Securities.
Upon compliance with, and subject to, the requirements set forth above in
this Section 803, such Subsidiary shall succeed to and be substituted for the
Company, with the same effect as if it had been named as the Company herein and
in the Securities in place of the Company; and the Company shall thereupon be
relieved of any further obligation or liability hereunder or upon the Securities
(except as provided in Subsection (2) above and in its guarantee as aforesaid).
Such Subsidiary may cause to be signed, and may issue in its own name, any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
Subsidiary, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered as provided herein, with the guarantee of the Company endorsed
thereon, and any Securities which such Subsidiary thereafter shall cause to be
signed and delivered, with the guarantee of the Company endorsed thereon, to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date thereof. In the
event a Subsidiary shall assume the obligations of the Company in accordance
with this Section 803, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities or to evidence the assumption by a Subsidiary
of the Company's obligations in accordance with Section 803; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or charge any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Section 201 and 301; or
<PAGE> 67
59
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b);
(9) to cure any ambiguity, to correct or supplement any provision
contained herein or in any supplemental indenture which may be inconsistent
with any other provision herein or in any supplemental indenture, or to
make any other provisions with respect to matters or questions arising
under this Indenture or under any supplemental indenture, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; and
(10) to provide for the terms and conditions upon which Securities
which qualify as capital under rules, regulations, orders, interpretive
rulings and guidelines of the Primary Federal Regulator as from time to
time in effect may be issued and the terms and characteristic of any such
Securities; provided, however, that no such supplemental indenture shall
effect any change in any Securities which may at the time be outstanding
under this Indenture.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any
<PAGE> 68
60
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in Section 1006 or the deletion of this
provision, in accordance with the requirements of Section 611(b) and
901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Officer's Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into
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any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
<PAGE> 70
62
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designations
or rescission and of any change in the location of any such other office or
agency. The Company hereby designates as a Place of Payment for each series of
Securities, the Borough of Manhattan, The City of New York, and appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its actions or
failure so to act.
<PAGE> 71
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The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provision of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease, provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a
<PAGE> 72
64
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries
considered as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. Limitation Upon Disposition of Capital Stock of a
Principal Subsidiary Bank or Principal Subsidiary.
Subject to Section 801, the Company will not, directly or indirectly, (1)
sell or permit to be issued any shares of capital stock of any Principal
Subsidiary Bank (other than directors' qualifying shares) or any shares of
capital stock of a Principal Subsidiary or any securities convertible into or
rights to subscribe to such capital stock, unless, after giving effect to such
transaction and to shares issuable upon conversion or exercise of rights into
such capital stock (including such securities, if any, which may be the subject
of such transaction), at least 80% of the outstanding shares of capital stock of
each class of such Principal Subsidiary or Principal Subsidiary Bank shall be
owned at that time, directly or indirectly, by the Company, or (2) pay any
dividend, or make any other distribution, in shares of capital stock of a
Principal Subsidiary Bank or in shares of capital stock of a Principal
Subsidiary which owns capital stock of any Principal Subsidiary Bank, unless
prior to such sale, payment or distribution the Principal Subsidiary Bank to
which the transaction relates shall have unconditionally guaranteed payment when
due of the principal of (and premium, if any) and interest on the Securities,
such Principal Subsidiary Bank shall have obtained all regulatory approvals, if
any, required to permit the guarantee of the Securities and the Company shall
have delivered to the Trustee an Opinion of Counsel stating that the guarantee
of the Securities by such Principal Subsidiary Bank has been duly authorized,
executed and delivered and constitutes a valid and legally binding obligation of
such Principal Subsidiary Bank.
<PAGE> 73
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SECTION 1006. Limitation Upon Liens on Certain Capital Stock.
The Company will not at any time directly or indirectly create, assume,
incur or suffer to be created, assumed or incurred or to exist any mortgage,
pledge, encumbrance or lien or charge of any kind upon any shares of capital
stock of any Principal Subsidiary Bank (other than directors' qualifying shares)
or Principal Subsidiary; provided, however, that, notwithstanding the foregoing,
the Company may incur or suffer to be incurred or to exist upon such capital
stock (a) liens for taxes, assessments or other governmental charges or levies
which are not yet due or are payable without penalty or of which the amount,
applicability or validity is being contested by the Company in good faith by
appropriate proceedings and the Company shall have set aside on its books
adequate reserves with respect thereto (segregated to the extent required by
generally accepted accounting principles), or (b) the liens of any judgment, if
such judgment shall not have remained undischarged, or unstayed on appeal or
otherwise, for more than 60 days.
SECTION 1007. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement, which need not comply with Section 102,
signed by the Chairman of the Board, the President, a Vice Chairman or a Vice
President and by the Treasurer, an Assistant Treasurer, the Comptroller or an
Assistant Comptroller of the Company, stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of Default,
or, if such an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 through 1006 with
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66
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article or Article Twelve.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities at the election of the Company prior to the
expiration of any restriction on redemptions provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of
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the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of any accrued interest to the
Redemption Date,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and any accrued interest to the
Redemption Date, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that instalments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
therefor for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as required by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such Series; provided, that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
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which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
HOLDERS' MEETINGS
SECTION 1301. Purposes for Which Meetings May be Called.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any direction to the Trustee, or to waive or consent to the waiving of any
Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions
of Article Five;
(2) to remove the Trustee or appoint a successor trustee, pursuant to
the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Sections 901 and 902; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
under any other provision of this Indenture or under applicable law.
SECTION 1302. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 1301. Notice of every meeting of the Holders, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed by the Trustee to the Company and
to the Holders not less than 20 nor more than 60 days prior to the date fixed
for the meeting. Any meeting shall be valid without notice if the Holders of all
of the Outstanding Securities are present in person or by proxy,
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or if notice is waived before or after the meeting by the Holders of all of the
Outstanding Securities, and if the Company and the Trustee are either present or
have, before or after the meeting, waived notice.
SECTION 1303. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of not less than 30% in aggregate principal amount of
the Outstanding Securities, shall have requested the Trustee to call a meeting
of Holders to take any action authorized in Section 1301 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of such meeting within 20
days after receipt of such request, then the Company or such Holders in the
amount above specified may determine the time and the place in New York, New
York or Winston-Salem, North Carolina for such meeting and may call such meeting
to take any action authorized in Section 1301, by mailing notice thereof as
provided in Section 1302.
SECTION 1304. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders a person shall (a) be a
Holder of one or more Securities with respect to which the meeting is being
held, or (b) be a person appointed by an instrument in writing as proxy by such
Holder of one or more Securities. The only persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 1305. Regulations May be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Outstanding Securities held or represented by him.
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SECTION 1306. Evidence of Actions by Holders.
Whenever the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that the Holders of such
percentage have acted may be evidence by (a) instruments of similar tenor
executed by Holders in person or by attorney or written proxy, or (b) the
Holders voting in favor thereof at any meeting of Holders called and held in
accordance with the provisions of the rules for meetings of Holders, or (c) by a
combination thereof. The Trustee may require proof of any matter concerning the
execution of any instrument by a Holder or his attorney or proxy as it shall
deem necessary.
SECTION 1307. Exercise of Rights of Trustee and Holders Not to be Hindered or
Delayed.
Nothing in this Article contained shall be deemed or construed to authorize
or permit, by reason of any call of a meeting of Holders or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Holders under any of the provisions of this Indenture or of the
Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WACHOVIA CORPORATION
BY: /s/ RICHARD B. ROBERTS
-----------------------------
Executive Vice President
[SEAL]
Attest:
/s/ ALICE WASHINGTON GROGAN
- -----------------------------------
Secretary
THE CHASE MANHATTAN BANK,
as Trustee
BY: /s/ JOANNE ADAMIS
-----------------------------
Second Vice President
[SEAL]
Attest:
/s/ LINCOLN A. GRAHAM
- --------------------------
<PAGE> 1
EXHIBIT 5(a)
[WACHOVIA LOGO]
Wachovia Corporation
100 North Main Street
Winston-Salem, North Carolina 27150
August 15, 1996
Wachovia Corporation
100 North Main Street
Winston-Salem, North Carolina 27150
and
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Re: Registration of $200,000,000 of Senior Debt Securities
Gentlemen:
I am General Counsel to Wachovia Corporation, a North Carolina corporation
("Wachovia"), and I have acted in such capacity in connection with the
registration under the Securities Act of 1933 (the "Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, of $200,000,000 aggregate principal amount (which term shall mean,
in the case of debt securities issued at an original issue discount within the
meaning of Section 1273 of the Internal Revenue Code of 1986, the price at which
such debt securities are first offered to the public) of Senior Debt Securities
of Wachovia (the "Senior Debt Securities"), to be issued pursuant to the
Indenture, dated as of August 15, 1996, between Wachovia and The Chase Manhattan
Bank, as Trustee (the "Indenture").
In so acting, I have examined and relied upon the accuracy of original,
certified, conformed or photographic copies of such records, agreements,
certificates and other documents as I have deemed necessary or appropriate to
enable me to render the opinions set forth below. In all such examinations, I
have assumed the genuineness of signatures on original documents and the
conformity to such original documents of all copies submitted to me as
certified, conformed or photographic copies and, as to certificates of public
officials, I have assumed the same to have been properly given and to be
accurate.
Based upon the foregoing, I am of the opinion that:
(i) Wachovia has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of North Carolina;
(ii) The execution and delivery of the Indenture by Wachovia has been
validly authorized and the Indenture constitutes the valid and binding
obligation of Wachovia in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and, as to rights of acceleration and the
enforcement of remedies to general principals of equity); and
(iii) The Senior Debt Securities, when duly authorized by Wachovia,
executed on behalf of Wachovia, authenticated by the Trustee under the
Indenture and sold by Wachovia, will be validly issued, will constitute
valid and binding obligations of Wachovia in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and, as to rights of
acceleration and the enforcement of remedies to general principals of
equity) and will be entitled to the benefits of the Indenture in accordance
with their terms and the terms of the Indenture subject as aforesaid.
I consent to the filing of this opinion and my opinion dated June 19, 1996
with respect to Wachovia's Subordinated Debt Securities as exhibits to
Wachovia's Registration Statement on Form S-3 (File Nos. 33-6280 and 333-6319)
and to the reference to me under the caption "Legal Matters" in the Prospectus
that forms a part thereof.
Very truly yours,
/s/ KENNETH W. MCALLISTER
--------------------------------------
Kenneth W. McAllister
<PAGE> 1
EXHIBIT 12
WACHOVIA CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED JUNE ---------------------------------------------------------------------------
30, 1996 1995 1994 1993 1992 1991 1990
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(A) EXCLUDING INTEREST ON
DEPOSITS
Earnings:
Income before income
taxes................ $ 454,275 $ 868,868 $ 761,482 $ 687,540 $ 596,203 $ 280,918 $ 434,324
Less capitalized
interest............. 0 (1,530) (362) 0 0 0 0
Fixed charges.......... 398,395 768,982 512,717 296,396 232,226 396,793 533,825
---------- ---------- ---------- ---------- ---------- ---------- ----------
Earnings as
adjusted...... $ 852,670 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711 $ 968,149
========== ========== ========== ========== ========== ========== ==========
Fixed charges:
Interest on purchased
and other short term
borrowed funds....... $ 220,420 $ 467,007 $ 272,572 $ 173,847 $ 190,988 $ 369,202 $ 505,513
Interest on long-term
debt................. 171,100 288,646 226,584 107,585 25,153 13,049 15,249
Portion of rents
representative of the
interest factor
( 1/3) of rental
expense.............. 6,875 13,329 13,561 14,964 16,085 14,542 13,063
---------- ---------- ---------- ---------- ---------- ---------- ----------
Fixed charges... $ 398,395 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793 $ 533,825
========== ========== ========== ========== ========== ========== ==========
Ratio of earnings to
fixed charges.......... 2.14 x 2.13x 2.48x 3.32x 3.57x 1.71x 1.81x
(B) INCLUDING INTEREST ON
DEPOSITS:
Adjusted earnings from
(A) above.............. $ 852,670 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711 $ 968,149
Add interest on
deposits............... 433,280 823,454 539,232 557,580 750,887 1,085,598 1,163,352
---------- ---------- ---------- ---------- ---------- ---------- ----------
Earnings as
adjusted...... $1,285,950 $2,459,774 $1,813,069 $1,541,516 $1,579,316 $1,763,309 $2,131,501
========== ========== ========== ========== ========== ========== ==========
Fixed charges:
Fixed charges from (A)
above................ $ 398,395 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793 $ 533,825
Interest on deposits... 433,280 823,454 539,232 557,580 750,887 1,085,598 1,163,352
---------- ---------- ---------- ---------- ---------- ---------- ----------
Adjusted fixed charges... $ 831,675 $1,592,436 $1,051,949 $ 853,976 $ 983,113 $1,482,391 $1,697,177
========== ========== ========== ========== ========== ========== ==========
Adjusted earnings to
adjusted fixed
charges................ 1.55 x 1.54x 1.72x 1.81x 1.61x 1.19x 1.26x
</TABLE>
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Post-Effective Amendment No. 1 to the Registration Statements (Form S-3 Nos.
333-6319 and 33-6280) and related Prospectus of Wachovia Corporation for the
registration of $1 billion of subordinated debt securities and $200 million of
senior debt securities and to the incorporation by reference therein of our
report dated January 11, 1996 with respect to the consolidated financial
statements of Wachovia Corporation incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Winston-Salem, North Carolina
August 12, 1996
<PAGE> 1
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
We, the undersigned officers of Wachovia Corporation, and each of us, do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), our attorneys-in-fact and agents with full power of substitution
for us and in our name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, we the undersigned have executed this Power of Attorney
this 12th day of August, 1996.
/s/ L. M. BAKER, JR.
--------------------------------------
L. M. Baker, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
/s/ ROBERT S. MCCOY, JR.
--------------------------------------
Robert S. McCoy, Jr.
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
/s/ DONALD K. TRUSLOW
--------------------------------------
Donald K. Truslow
Comptroller
(Principal Accounting Officer)
<PAGE> 2
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 12th day of
August, 1996.
/s/ RUFUS C. BARKLEY, JR.
--------------------------------------
Rufus C. Barkley, Jr.
<PAGE> 3
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ JOHN L. CLENDENIN
--------------------------------------
John L. Clendenin
<PAGE> 4
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 12th day of
August, 1996.
/s/ LAWRENCE M. GRESSETTE, JR.
--------------------------------------
Lawrence M. Gressette, Jr.
<PAGE> 5
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ THOMAS K. HEARN, JR.
--------------------------------------
Thomas K. Hearn, Jr.
<PAGE> 6
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ DONALD R. HUGHES
--------------------------------------
Donald R. Hughes
<PAGE> 7
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ JAMES W. JOHNSTON
--------------------------------------
James W. Johnston
<PAGE> 8
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ SHERWOOD H. SMITH, JR.
--------------------------------------
Sherwood H. Smith, Jr.
<PAGE> 9
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ CHARLES MCKENZIE TAYLOR
--------------------------------------
Charles McKenzie Taylor
<PAGE> 10
EXHIBIT 24(A)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation (the "Corporation"), do
hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington
Grogan, and each of them (either of whom may act without the consent or joinder
of the other), my attorneys-in-fact and agents with full power of substitution
for me and in my name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to (a) the Registration
Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's
Registration Statement on Form S-3 (File No. 33-6280), together covering the
issuance by the Corporation of up to $1,200,000,000 aggregate principal amount
of debt securities, or such larger amount as shall be authorized by the
Corporation, and to file the same with the Securities and Exchange Commission,
with any exhibits thereto, and other documents in connection therewith, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of
August, 1996.
/s/ JOHN C. WHITAKER, JR.
--------------------------------------
John C. Whitaker, Jr.
<PAGE> 1
EXHIBIT 24(C)
WACHOVIA CORPORATION
BOARD OF DIRECTORS
April 25, 1986
"RESOLVED, that the proper officers of the Company be, and each of them
hereby is, authorized, in the name and on behalf of the Company, to execute and
deliver a power of attorney appointing each of Ralph N. Strayhorn and Richard M.
Langway to act as attorneys-in-fact for the Company for the purpose of executing
and filing with the SEC, in its name and on its behalf, any such Registration
Statement and any and all amendments (including, without limitation,
post-effective amendments) or supplements thereto, with any exhibits thereto and
other documents in connection therewith."
April 26, 1996
"RESOLVED, that the resolutions and authorizations contained therein
adopted by this Board at its April 25, 1986 meeting and subsequently amended and
extended to the date of this meeting, relating to the issuance of $300 million
principal amount of debt securities and the resolutions and authorizations
contained therein adopted by this Board at its October 27, 1995 meeting relating
to the issuance of $1 billion principal amount of subordinated debt securities,
be and the same hereby are renewed and extended to expire concurrent with the
next regular annual meeting of the Board following the date of this meeting, if
efforts directed toward issuance of Notes as contemplated therein shall not have
been undertaken by officers of the Corporation on or before such date; and
"FURTHER RESOLVED, that, as set forth in the resolutions and authorizations
described above, the proper officers of the Corporation be, and each of them
hereby is, authorized, in the name and on behalf of the Corporation, to execute
and deliver a power of attorney appointing each of Kenneth W. McAllister and
Alice Washington Grogan to act as attorneys-in-fact for the Corporation for the
purpose of executing and filing with the SEC, in its name and on its behalf, any
Registration Statement related to such promissory notes and any and all
amendments (including, without limitation, post-effective amendments) or
supplements thereto, with any exhibits thereto and other documents in connection
therewith."
<PAGE> 1
EXHIBIT 25(A)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
---------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-----------
---------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE 10017
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
</TABLE>
WILLIAM H. MCDAVID
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------
WACHOVIA CORPORATION
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
NORTH CAROLINA 56-1473727
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 NORTH MAIN STREET 27101
WINSTON-SALEM, NORTH CAROLINA (Zip Code)
(Address of principal executive offices)
</TABLE>
---------------------
SENIOR DEBT SECURITIES
(Title of Indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State House,
Albany, New York 12110. Board of Governors of the Federal Reserve System,
Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996.
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee.
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 12th day of August, 1996.
THE CHASE MANHATTAN BANK
By: Joanne Adamis
------------------------------------
Second Vice President
2
<PAGE> 3
THE CHASE MANHATTAN BANK
270 PARK AVENUE
NEW YORK, NY 10017-2070
CERTIFICATE
I, Jean E. Rugani, an Assistant Corporate Secretary of The Chase Manhattan
Bank (formerly known as Chemical Bank), a banking organization organized under
the laws of the State of New York, do hereby certify that attached are true and
correct copies of --
(a) the Organization Certificate of Chemical Bank, as approved and
filed in the office of the Superintendent of Banks of the State of New York
on November 26, 1968,
(b) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on February 17, 1969,
(c) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on September 8, 1977,
(d) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on January 29, 1981,
(e) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on September 14, 1982,
(f) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on March 13, 1985;
(g) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York on June 4, 1992; and
(h) a Certificate of Amendment of the Organization Certificate of
Chemical Bank as approved and filed in the office of the Superintendent of
Banks of the State of New York effective as of July 13, 1996.
I further certify that said Organization Certificate, as amended by said
Certificates of Amendment, is in full force and effect on the date hereof.
IN WITNESS WHEREOF I have hereunto set my hand and affixed the seal of The
Chase Manhattan Bank as of this 18th day of July 1996.
/s/ Jean E. Rugani
--------------------------------------
Jean E. Rugani
I, BERNARD GASSMAN, Deputy Superintendent of Banks of the State of New
York, do hereby certify that I have caused the annexed Copy of the Organization
Certificate of Chemical Bank dated November 26, 1968, and filed in the office of
the Superintendent of Banks on November 26, 1968 to be compared by a competent
clerk with the original on file in the Banking Department, and the same is a
correct copy of said Organization Certificate end of the whole thereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of New York, N.Y., this 17th day of February 1968
/s/ Bernard Gassman
--------------------------------------
Bernard Gassman
Deputy Superintendent
3
<PAGE> 4
ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
Received this 25th day of November 1968
---------------------------------------------------------
Superintendent of Banks
Filed for examination this 25th day of November 1968
---------------------------------------------------------
Superintendent of Banks
Approved by the Banking Board by unanimous instrument in writing on the 26th day
of November 1968
---------------------------------------------------------
Secretary of the Banking Board
Approved this 26th day of November 1968
---------------------------------------------------------
Superintendent of Banks
Filed in the office of Superintendent of Banks this 26th day of November 1968
Recorded in the office of this day of
19
4
<PAGE> 5
ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
We, the undersigned all being of full age and citizens of the United
States, two of us being residents of the State of New York and three of us being
residents of states contiguous to the State of New York, for the purpose of
incorporating and organizing a trust company under the banking laws of the State
of New York do hereby certify as follows:
FIRST: The name by which the Corporation is to be known is CHEMICAL BANK.
SECOND: The place where its office is to be located is 20 Pine Street,
Borough of Manhattan, City, County and State of New York.
THIRD: The amount of authorized capital stock which the Corporation is
hereafter to have is $510,000, and the number of shares into which such capital
stock is to be divided is 42,500 shares, each of the same class and of the par
value of $12 per share.
FOURTH: The names, places of residence and citizenship of the
incorporators and the number of shares of capital stock of the Corporation
subscribed for by each are as follows:
<TABLE>
<CAPTION>
NUMBER OF
PLACE OF SHARES
NAME RESIDENCE CITIZENSHIP SUBSCRIBED
------------------------------------- ------------------------- ------------ ---------
<S> <C> <C> <C>
William S. Renchard.................. 200 E. 66th Street U.S. 84
New York, N.Y. 10021
Hulbert S. Aldrich................... 1088 Park Avenue U.S. 84
New York, N.Y. 10028
Howard W. McCall, Jr................. 68 Dorchester Road U.S. 84
Darien, Conn. 06820
Walter M. Ross....................... 442 North Street U.S. 84
Greenwich, Conn. 06830
Arthur P. Ringler.................... 27 Londonberry Way U.S. 84
Summit, New Jersey 07901
</TABLE>
FIFTH: The number of directors of the Corporation shall be not less than
five nor more than fifteen; provided, however, that upon effectiveness of the
merger of Chemical Bank New York Trust Company into the Corporation the number
of directors of the Corporation shall be not less than seven nor more than
twenty-five.
SIXTH: The names of the incorporators who are to serve as directors of the
Corporation until the first annual meeting of stockholders of the Corporation
are:
William S. Renchard
Hulbert S. Aldrich
Howard W. McCall, Jr.
Walter M. Ross
Arthur P. Ringler
SEVENTH: The Corporation is to exercise the powers conferred by Section
100 of the banking laws of the State of New York.
5
<PAGE> 6
IN WITNESS WHEREOF, the undersigned have executed this Certificate this day
of 1968.
/s/ WILLIAM S. RENCHARD
--------------------------------------
William S. Renchard, Incorporator
/s/ HULBERT S. ALDRICH
--------------------------------------
Hulbert S. Aldrich, Incorporator
/s/ HOWARD W. McCALL, JR.
--------------------------------------
Howard W. McCall, Jr., Incorporator
/s/ WALTER M. ROSS
--------------------------------------
Walter M. Ross, Incorporator
/s/ ARTHUR P. RINGLER
--------------------------------------
Arthur P. Ringler, Incorporator
6
<PAGE> 7
<TABLE>
<S> <C> <C>
STATE OF NEW YORK )
COUNTY OF NEW YORK, ) SS
</TABLE>
On this day of 1968 personally appeared before me William S.
Renchard, Hulbert S. Aldrich, Howard W. McCall, Jr., Walter M. Ross and Arthur
P. Ringler, to me known to be the persons described in and who executed the
foregoing certificate, and severally acknowledged that they executed the same.
--------------------------------------
Notary Public
[Notarial Seal]
Filed in the Office of the
Superintendent of Banks, State of New
York, this 20 day of 19
- --------------------------------------
Administrative Officer
7
<PAGE> 8
I, FRANK WILLE, Superintendent of Banks of the State of New York, DO HEREBY
APPROVE, the annexed certificate entitled "Certificate of Amendment of the
Organization Certificate of CHEMICAL BANK under Section 8005 of the Banking Law"
dated 1969, providing for increase of capital stock from $ to
$
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of Albany, this 17th day of February 1969
--------------------------------------
Superintendent of Banks
I, BERNARD GASSMAN Deputy Superintendent of Banks of the State of New York,
do hereby certify that I have caused the annexed Copy of Certificate of
Amendment of the Organization Certificate of Chemical Bank dated February 10,
1969, and filed in the office of the Superintendent of Banks on February 17,
1969 to be compared by a competent clerk with the original on file in the
Banking Department, and the same is a correct copy of said Certificate of
Amendment of Organization Certificate and of the whole thereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of New York, N.Y., this 17th day of February 1969
/s/ Bernard Gassman
--------------------------------------
Deputy Superintendent
8
<PAGE> 9
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
WE, WILLIAM S. RENCHARD and RAYMOND F. ADAMS, being, respectively, the
President and the Secretary of CHEMICAL BANK, a New York banking organization,
do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The date on which the Organization Certificate of the Corporation
was filed by the Superintendent of Banks of the State of New York is
November 26, 1968.
3. Paragraph Third of the Organization Certificate of the Corporation,
stating that the amount of the its authorized capital stock is $510,000 and
the number of shares into which such capital stock is to be divided is
42,500 shares, each of the same class and of the par value of $12 per
share, is hereby amended to read as follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $160,731,564 and the number of
shares into which such capital stock is to be divided is 13,394,297
shares, each of the same class and of the par value of $12 per share."
4. This amendment to the Organization Certificate was approved by the
votes, cast in person or by proxy at a special stockholders' meeting of the
Corporation duly held upon notice on December 30, 1968, by the holders of
record of all the outstanding shares of the capital stock of the
Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this day
of February 1969.
/s/ William S. Renchard
--------------------------------------
William S. Renchard
President
/s/ Raymond F. Adams
--------------------------------------
Raymond F. Adams
Secretary
[Corporate Seal]
9
<PAGE> 10
<TABLE>
<S> <C> <C>
STATE OF NEW YORK, )
COUNTY OF NEW YORK ) SS.:
</TABLE>
I, RAYMOND F. ADAMS, being duly sworn, depose and say that I, the said
Raymond F. Adams, am the Secretary of CHEMICAL BANK, and that I have read and
signed the foregoing Certificate and known the contents thereof and the
statements therein contained are true.
--------------------------------------
Raymond F. Adams
Secretary
Subscribed and sworn to before me
this day of February 1969.
/s/ DONALD E. GOULD
- --------------------------------------
Notary Public
10
<PAGE> 11
I, WILLIAM J. HEANEY, Deputy Superintendent of Banks of the State of New
York DO HEREBY APPROVE the annexed certificate entitled "Certificate of
Amendment of the Organization Certificate of
under Section 8005 of the Banking Law" dated 19 providing for
increase of capital stock from $ to $ .
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of New York, N.Y., this 8th day of September
1977.
/s/ WILLIAM J. HEANEY
--------------------------------------
Deputy Superintendent of Banks
11
<PAGE> 12
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
WE, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman
of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The date on which the Organization Certificate of the Corporation
was filed by the Superintendent of Banks of the State of New York is
November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. Paragraph THIRD of the Organization Certificate of the Corporation,
as amended, stating that the amount of its authorized capital stock is
$160,731,564 and the number of shares into which such capital stock is to
be divided is 13,394,297 shares, each of the same class and of the par
value of $12 per share, is hereby amended to read as follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $187,200,000 and the number of
shares into which such capital stock is to be divided is 15,600,000
shares, each of the same class and of the par value of $12 per share."
5. This amendment to the Organization Certificate was approved by the
votes cast in person or by proxy at a special stockholders' meeting, duly
held on August 31, 1977, by the holders of record of all the outstanding
shares of the capital stock of the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
31st day of August 1977.
--------------------------------------
Donald C. Platten
Chairman of the Board
/s/ John B. Wynne
--------------------------------------
John B. Wynne
Secretary
[Corporate Seal]
12
<PAGE> 13
<TABLE>
<S> <C>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
</TABLE>
I, JOHN B. WYNNE, being duly sworn, depose and say
that I, the said JOHN B. WYNNE, am the Secretary of
CHEMICAL BANK, and that I have read and signed the
foregoing Certificate and know the contents thereof and the
statements therein contained are true.
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
Subscribed and sworn to before
me this day of 1977.
- --------------------------------------
Notary Public
13
<PAGE> 14
I, DONALD J. KAVANAGH Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of
Amendment of the Organization Certificate of
under Section 8005 of the Banking Law" dated as of 19 , providing
for increase of capital stock from $ to $ .
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of New York, N.Y., this 29th day of January 1981.
/s/ DONALD J. KAVANAGH
--------------------------------------
Deputy Superintendent of Banks
14
<PAGE> 15
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
WE, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman
of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The date on which the Organization Certificate of the Corporation
was filed by the Superintendent of Banks of the State of New York is
November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1977.
5. Paragraph THIRD of the Organization Certificate of the Corporation,
as amended, stating that the amount of its authorized capital stock is
$187,200,000 and the number of shares into which such capital stock is to
be divided is 15,600,000 shares, each of the same class and of the par
value of $12 per share, is hereby amended to read as follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $203,580,000 and the number of
shares into which such capital stock is to be divided is 16,965,000
shares, each of the same class and of the par value of $12 per share."
6. This amendment to the Organization Certificate was approved by the
votes cast in person or by proxy at a special stockholders' meeting, duly
held as of December 31, 1980, by the holders of record of all the
outstanding shares of the capital stock of the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as of
December 31, 1980.
/s/ Donald C. Platten
--------------------------------------
Donald C. Platten,
Chairman of the Board
/s/ John B. Wynne
--------------------------------------
John B. Wynne
Secretary
[Corporate Seal]
15
<PAGE> 16
<TABLE>
<S> <C>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
</TABLE>
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B.
WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the
foregoing Certificate and know the contents thereof and the statements therein
contained are true.
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
Subscribed and sworn to before
me this day of 1977.
- --------------------------------------
Notary Public
16
<PAGE> 17
I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of
Amendment of the Organization Certificate of under Section 8005 of
the Banking Law" dated as of 19 , providing for increase of capital
stock from $ to
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department of New York, N.Y., this 14th day of September
1982
/s/ PETER M. PHILBIN
--------------------------------------
Peter M. Philbin
Deputy Superintendent of Banks
17
<PAGE> 18
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
We, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman
of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The date on which the Organization Certificate of the Corporation
was filed by the Superintendent of Banks of the State of New York is
November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1977.
5. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on January 29, 1981.
6. Paragraph THIRD of the Organization Certificate of the Corporation,
as amended, stating that the amount of its authorized capital stock is
$203,580,000 and the number of shares into which such capital stock is to
be divided is 16,965,000 shares, each of the same class and of the par
value of $12 per share, is hereby amended to read as follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $287,580,000 and the number of
shares into which such capital stock is to be divided is 23,965,000
shares, each of the same class and of the par value of $12 per share."
7. This amendment to the Organization Certificate was approved by the
votes cast in person or by proxy at a special stockholders' meeting, duly
held as of September 8, 1982, by the holders of record of all the
outstanding shares of the capital stock of the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this 9th
day of September 1982.
/s/ DONALD C. PLATTEN
--------------------------------------
Donald C. Platten,
Chairman of the Board
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
[Corporate Seal]
18
<PAGE> 19
<TABLE>
<S> <C> <C>
STATE OF NEW YORK, )
COUNTY OF NEW YORK ) SS.:
</TABLE>
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B.
WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the
foregoing Certificate and know the contents thereof and the statements therein
contained are true.
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
Subscribed and sworn to before me
this 9th day of September 1982.
- --------------------------------------
Notary Public
19
<PAGE> 20
STATE OF NEW YORK
BANKING DEPARTMENT
I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of
Amendment of the Organization Certificate of Chemical Bank under Section 8005 of
the Banking Law" dated February 28, 1985 providing for increase of capital stock
from $287,580,000, consisting of 23,965,000 shares of the par value of $12 per
share, to $315,000,000, consisting of 25,000,000 shares of the same par value
and 15,000,000 shares of preferred stock, par value of $1 per share, with such
terms as may be approved by the Board at the time of issuance of any class or
series of such preferred stock.
WITNESS, my hand and official seal of the Banking Department at the City of
New York, this 13th day of March in the Year of our Lord one thousand nine
hundred and eighty-five.
20
<PAGE> 21
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
We, WALTER V. SHIPLEY and JOHN B. WYNNE, being, respectively, the Chairman
of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The date on which the Organization Certificate of the Corporation
was filed by the Superintendent of Banks of the State of New York is
November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1977.
5. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on January 29, 1981.
6. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1982.
7. Paragraph THIRD of the Organization Certificate of the Corporation,
as amended, stating that the amount of its authorized capital stock is
$287,580,000 and the number of shares into which such capital stock is to
be divided is 23,965,000 shares, each of the same class and of the par
value of $12 per share, is hereby amended to read as follows:
"THIRD: The amount of authorized capital stock which the
Corporation hereafter is to have is $315,000,000 and the number of
shares into which such capital stock is to be divided is 40,000,000
shares consisting of 25,000,000 shares of Common Stock, par value $12
per share, and 15,000,000 shares of Preferred Stock, par value $1 per
share, which shall be issued in one or more classes or series having
such designations, relative rights, preferences or limitations as fixed
by the Board of Directors of the Corporation at the time of issuance of
any such Preferred Stock."
8. This amendment to the Organization Certificate was approved by a
resolution adopted by the written consent of Chemical New York Corporation,
the sole stockholder of the Corporation, on February 28, 1985.
21
<PAGE> 22
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
28th day of February 1985.
/s/ WALTER V. SHIPLEY
--------------------------------------
Walter V. Shipley
Chairman of the Board
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
[Corporate Seal]
22
<PAGE> 23
STATE OF NEW YORK
BANKING DEPARTMENT
I, CARMINE M. TENGA, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "Certificate of
Amendment of the Organization Certificate of CHEMICAL BANK under Section 8005 of
the New York Banking Law," dated December 2, 1991, providing for the following:
(1) An increase in capital stock from $315,000,000, consisting of
25,000,000 shares of Common Stock, par value $12 per share, and 15,000,000
shares of Preferred Stock, par value $1 per share, to $699,000,000, consisting
of 57,000,000 shares of Common Stock, par value $12 per share, and 15,000,000
shares of Preferred Stock, par value $1 per share; and
(2) The location of the Principal office as New York, New York.
WITNESS, my hand and official seal of the Banking Department of the City of
New York, this 4th day of June in the Year of our Lord one thousand nine hundred
and ninety-two
/s/ CARMINE M. TENGA
--------------------------------------
Carmine M. Tenga
Deputy Superintendent of Banks
23
<PAGE> 24
<TABLE>
<S> <C> <C>
STATE OF NEW YORK, )
COUNTY OF NEW YORK, ) SS.:
</TABLE>
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B.
WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the
foregoing Certificate and know the contents thereof and the statements therein
contained are true.
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
Subscribed and sworn to before me
this 3rd day of December 1977.
- --------------------------------------
Notary Public
24
<PAGE> 25
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE BANKING LAW
WE, WALTER V. SHIPLEY and JOHN B. WYNNE, being, respectively, the Chairman
of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The Organization Certificate of Chemical Bank was filed by the
Superintendent of Banks of the State of New York on November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1977.
5. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on January 29, 1981.
6. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1982.
7. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on March 13, 1985.
8. Article SECOND of the Organization Certificate, stating that the
place where the Corporation's office is to be located is 20 Pine Street,
New York, New York, is hereby amended and restated to read in its entirety
as follows:
"SECOND: The principal office of the Corporation is to be located
in New York, New York."
9. Article THIRD of the Organization Certificate, as amended, stating
that the amount of its authorized capital stock is $315,000,000 and the
number of shares into which such capital stock is to be divided is
40,000,000 shares consisting of 25,000,000 shares of Common Stock, par
value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1
per share, is hereby amended and restated to read in its entirety as
follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $699,000,000 and the number of
shares into which such capital stock is to be divided is 72,000,000
shares consisting of 57,000,000 shares of Common Stock, par value $12
per share, and 15,000,000 shares of Preferred Stock, par value $1 per
share, which shall be issued in one or more classes or series having
such designations, relative rights, preferences or limitations as fixed
by the Board of Directors of the Corporation at the time of issuance of
any such Preferred Stock."
10. These amendments to the Organization Certificate were approved by
a resolution adopted by the written consent of Chemical Banking
Corporation, the sole stockholder of the Corporation, on December 2, 1991.
25
<PAGE> 26
IN WITNESS WHEREOF, the undersigned have executed this Certificate this 2nd
day of December 1991.
/s/ WALTER V. SHIPLEY
--------------------------------------
Walter V. Shipley
Chairman of the Board
/s/ JOHN B. WYNNE
--------------------------------------
John B. Wynne
Secretary
26
<PAGE> 27
STATE OF NEW YORK
BANKING DEPARTMENT
I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF
THE BANKING LAW" dated July 10, 1996 providing for a change in name from
CHEMICAL BANK to THE CHASE MANHATTAN BANK and an increase in authorized capital
stock from $699,000,000, consisting of 15,000,000 shares with a par value of $1
each designated as Preferred Stock and 57,000,000 shares with a par value of $12
each designated as Common Stock to $1,335,000,000 consisting of 15,000,000
shares with a par value of $1 each designated as Preferred Stock and 110,000,000
shares with a par value of $12 each designated as Common Stock. Such name change
and increase in capital stock is to be effective July 13, 1996
WITNESS, my hand and official seal of the Banking Department at the City of
New York, this 11th day of July in the Year of our Lord one thousand nine
hundred and ninety-six
/s/ PETER M. PHILBIN
--------------------------------------
Peter M. Philbin
Deputy Superintendent of Banks
27
<PAGE> 28
CERTIFICATE OF AMENDMENT
OF
THE ORGANIZATION CERTIFICATE
OF
CHEMICAL BANK
UNDER SECTION 8005 OF THE NEW YORK BANKING LAW
We, WALTER V. SHIPLEY and ANTHONY J. HORAN, being, respectively, the
Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking
organization, do hereby certify as follows:
1. The name of the Corporation is Chemical Bank.
2. The Organization Certificate of Chemical Bank was filed by the
Superintendent of Banks of the State of New York on November 26, 1968.
3. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on February 17, 1969.
4. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1977.
5. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on January 29, 1981.
6. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on September 8, 1982.
7. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on March 13, 1985.
8. A Certificate of Amendment of the Organization Certificate of
Chemical Bank was filed by the Superintendent of Banks of the State of New
York on June 4, 1992.
9. Article FIRST of the Organization Certificate, stating that the
name by which the Corporation is to be known is CHEMICAL BANK, is hereby
amended and restated to read in its entirety as follows:
"FIRST: The name by which the Corporation is to be known is THE
CHASE MANHATTAN BANK."
10. Article THIRD of the Organization Certificate, as amended, stating
that the amount of its authorized stock which the Corporation is hereafter
to have is $699,000,000 and the number of shares into which such capital
stock is to be divided is 72,000,000 shares consisting of 57,000,000 shares
of Common Stock, par value $12 per share, and 15,000,000 shares of
Preferred Stock, par value $1 per share, which shall be issued in one of
more classes or series having such designations, relative rights,
preferences or limitations as fixed by the Board of Directors of the
Corporation at the time of issuance of any such Preferred Stock, is hereby
amended and restated to read in its entirety as follows:
"THIRD: The amount of authorized capital stock which the
Corporation is hereafter to have is $1,335,000,000 and the number of
shares into which such capital stock is to be divided is 125,000,000
shares consisting of 110,000,000 shares of Common Stock, par value $12
per share, and 15,000,000 shares of Preferred Stock, par value $1 per
share, which shall be issued in one or more classes or series having
such designations, relative rights, preferences or limitations as fixed
by the Board of Directors of the Corporation at the time of issuance of
any such Preferred Stock."
11. These amendments to the Organization Certificate were approved by
a resolution adopted by the written consent of The Chase Manhattan
Corporation, the sole stockholder of the Corporation, on July 3, 1996.
28
<PAGE> 29
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
10th day of July, 1996.
/s/ WALTER V. SHIPLEY
--------------------------------------
Walter V. Shipley
Chairman of the Board
/s/ ANTHONY J. HORAN
--------------------------------------
Anthony J. Horan
Secretary
29
<PAGE> 30
I, ANTHONY J. HORAN, being duly sworn, depose and say that I, the said
ANTHONY J. HORAN, am the Secretary of CHEMICAL BANK, and that I have read and
signed the foregoing Certificate and know the contents thereof and the
statements therein contained are true.
/s/ ANTHONY J. HORAN
--------------------------------------
Anthony J. Horan
Secretary
Subscribed and sworn to before me
this 10th day of July 1996.
/s/ VIRGINIA STANK
- --------------------------------------
Virginia Stank
Secretary
30
<PAGE> 31
BY-LAWS
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
AS AMENDED THROUGH
JULY 16, 1996
<PAGE> 32
CONTENTS
<TABLE>
<CAPTION>
ARTICLE SUBJECT PAGE
- ------- -------------------------------------------------------------------------------- ----
<S> <C> <C>
I MEETINGS OF STOCKHOLDERS
Section 1.01 Annual Meeting....................................................
Section 1.02 Special Meetings..................................................
Section 1.03 Quorum............................................................
II BOARD OF DIRECTORS
Section 2.01 Number............................................................
Section 2.02 Vacancies.........................................................
Section 2.03 Annual Meeting....................................................
Section 2.04 Regular Meetings..................................................
Section 2.05 Special Meetings..................................................
Section 2.06 Quorum............................................................
Section 2.07 Rules and Regulations.............................................
Section 2.08 Compensation......................................................
III COMMITTEES
Section 3.01 Executive Committee...............................................
Section 3.02 Examining Committee...............................................
Section 3.03 Other Committees..................................................
IV OFFICERS AND AGENTS
Section 4.01 Officers..........................................................
Section 4.02 Clerks and Agents.................................................
Section 4.03 Term of Office....................................................
Section 4.04 Chairman of the Board.............................................
Section 4.05 President.........................................................
Section 4.06 Vice Chairman of the Board........................................
Section 4.07 Chief Financial Officer...........................................
Section 4.08 Controller........................................................
Section 4.09 Secretary.........................................................
Section 4.10 General Auditor...................................................
Section 4.11 Powers and Duties of Other Officers...............................
Section 4.12 Fidelity Bonds....................................................
V CORPORATE SEAL
VI FISCAL YEAR
VII INDEMNIFICATION
Section 7.01 Right of Indemnification..........................................
Section 7.02 Contracts and Funding.............................................
Section 7.03 Employee Benefit Plans............................................
Section 7.04 Indemnification Not Exclusive Right...............................
Section 7.05 Advancement of Expenses; Procedures...............................
VII BY-LAWS
Section 8.01 Inspection........................................................
Section 8.02 Amendments........................................................
Section 8.03 Construction......................................................
</TABLE>
(ii)
<PAGE> 33
BY-LAWS
OF
THE CHASE MANHATTAN BANK
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1.01. Annual Meeting. The annual meeting of stockholders of The
Chase Manhattan Bank (herein called the Bank), shall be held in the Borough of
Manhattan, City of New York, State of New York, within the first four months of
each calendar year, on such date and at such time and place as the Board of
Directors (herein called the Board), may determine, for the election of
directors and the transaction of such other business as may properly come before
the meeting. Notice of such meeting, stating the purpose or purposes thereof and
the time when and the place where it is to be held and signed by the Chairman of
the Board (herein called the Chairman), the President, a Vice Chairman of the
Board or the Secretary or an Assistant Corporate Secretary of the Bank, shall be
served by personal delivery upon each stockholder of record entitled to vote at
such meeting not less than 10 nor more than 50 days before said meeting.
SECTION 1.02. Special Meetings. A special meeting of the stockholders may
be called at any time by the Board, the Chairman, the President, or a Vice
Chairman of the Board, or upon the request in writing of the holders of record
of not less than 40% of the outstanding capital stock. Notice of any special
meeting, stating the time, place and purpose or purposes thereof, shall be given
by personal delivery to the stockholders in the manner provided in Section 1.01
for the giving of notice of annual meetings of stockholders. In the case of any
meeting of stockholders, annual or special, called for a purpose requiring other
or further notice. Such notice shall be give as required by law.
SECTION 1.03. Quorum. A majority of the outstanding common stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
stockholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held as
adjourned, without further notice.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 2.01. Number. The business and affairs of the Bank shall be
managed by or under the direction of a Board of Directors, of such number as may
be fixed from time to time by resolution adopted by the Board, but in no event
less than 7 or more 25, selected, organized and continued in accordance with the
provisions of the New York Banking Law. Each director hereafter elected shall
hold office until the next annual meeting of the stockholders and until his
successor is elected and has qualified, or until his death or until he shall
resign or shall have been removed.
SECTION 2.02. Vacancies. In case of any increase in the number of
directors, the additional director or directors, and in case of any vacancy in
the board due to death, resignation, removal, disqualification or any other
cause, the successors to fill the vacancies, not exceeding one-third of the
entire Board, shall be elected by a majority of the directors then in office.
SECTION 2.03. Annual Meeting. An annual meeting of the directors shall be
held each year, without notice, immediately following the annual meeting of
stockholders. The time and place of such meeting shall be designated by the
Board. At such meeting, the directors shall, after qualifying, elect from their
own number a Chairman of the Board, a President and one or more Vice Chairmen of
the Board, and shall elect or appoint such other officers authorized by these
By-laws as they may deem desirable, and appoint the Committees specified in
Article III hereof. The directors may also elect to serve at the pleasure of the
Board, one or more Honorary Directors, not members of the Board. Honorary
Directors of the Board shall be paid such compensation or such fees for
attendance at meetings of the Board, and meetings of other committees of the
Board, as the Board shall determine from time to time.
<PAGE> 34
SECTION 2.04. Regular Meetings. The Board shall hold a regular meeting
without notice at the principal office of the Bank on the third Tuesday in each
month, with the exception of the month of August, at such time as shall be
determined by the Board, unless another time or place within or without the
State, shall be fixed by resolution of the Board. Should the day appointed for a
regular meeting fall on a legal holiday, the meeting shall be held at the same
time on the preceding day or on such other day as the Board may order.
SECTION 2.05. Special Meetings. Special meetings of the Board shall be
held whenever called by the Chairman, the President, a Vice Chairman of the
Board, the Secretary or a majority of the directors at the time in office. A
notice shall be given as hereinafter in this Section provided of each such
special meeting, in which shall be stated the time and place of such meeting,
but, except as otherwise expressly provided by law or by these By-laws, the
purposes thereof need not be stated in such notice. Except as otherwise provided
by law, notice of each such meeting shall be mailed to each director, addressed
to him at his residence or usual place of business at least two (2) days before
the day on which such meeting is to be held, or shall be sent addressed to him
at such place by telegraph, cable, wireless or other form of recorded
communication or be delivered personally or by telephone not later than noon of
the calendar day before the day on which such meeting is to be held. At any
regular or special meeting of the Board, or any committee thereof, one or more
Board or committee members may participate in such meeting by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. This type of
participation shall constitute presence in person at the meeting. Notice of any
meeting of the Board shall not, however, be required to be given to any director
who submits a signed waiver of notice whether before or after the meeting, or if
he shall be present at such meeting; and any meeting of the Board shall be a
legal meeting without any notice thereof having been given if all the directors
of the Bank then in office shall be present thereat.
SECTION 2.06. Quorum. One-third of the members of the entire Board, or
the next highest integer in the event of a fraction, shall constitute a quorum,
but if less than a quorum be present, a majority of those present may adjourn
any meeting from time to time and the meeting may be held as adjourned without
further notice.
SECTION 2.07 Rules and Regulations. The Board may adopt such rules and
regulations for the conduct of its meetings and the management of the affairs of
the Bank as it may deem proper, not inconsistent with the laws of the State of
New York or these By-laws.
SECTION 2.08. Compensation. Directors shall be entitled to receive from
the Bank such fees for attendance at meetings of the Board or of any committee,
or both, as the Board from time to time determine. The Board may also likewise
provide that the Bank shall reimburse each such director or member of such
committee for any expenses paid by him on account of his attendance at any such
meeting. Nothing in this Section contained shall be construed to preclude any
director from serving the Bank in any other capacity and receiving compensation
therefor.
ARTICLE III
COMMITTEES
SECTION 3.01. Executive Committee. The Board, by resolution adopted by a
majority of the entire Board, shall appoint an Executive Committee which, when
the Board is not in session, shall have and may exercise all the powers of the
Board that lawfully may be delegated including, without limitation, the power
and authority to declare dividends. The Executive Committee shall consist of
such number of directors as the Board shall from time to time determine, but not
less than five and one of whom shall be designated by the Board as Chairman
thereof, as follows: (a) the Chairman of the Board, the President, the Vice
Chairmen of the Boar, and (b) such other directors, none of whom shall be an
officer of the Bank, as shall be appointed to serve at the pleasure of the
Board. The Board, by resolution adopted by a minority of the entire Board, may
designate one or more directors as alternate members of the Executive Committee
and the manner and circumstances in which such alternate members shall replace
or act in the place of absent or disqualified members of the Executive
Committee. The attendance of one-third of the members of the Committee or their
2
<PAGE> 35
substitutes, or the next highest integer in the event of a fraction, at any
meeting shall constitute a quorum, and the act of a majority of those present at
a meeting thereof at which a quorum is present shall be the act of the
Committee. All acts done and powers conferred by the Committee from time to time
shall be deemed to be, and may be certified as being done or conferred under
authority of the Board. The Committee shall fix its own rules and procedures,
and the minutes of the meetings of the Committee shall be submitted at the next
regular meeting of the Board at which a quorum is present, or if impracticable
at the next such subsequent meeting. The Committee shall hold meetings "On Call
and such meetings may be called by the Chairman of the Executive Committee, the
Chairman of the Board, the President, a Vice Chairman of the Board, or the
Secretary. Notice of each such meeting of the Committee shall be given by mail,
telegraph, cable, wireless or other form of recorded communication or be
delivered personally or by telephone to each member of the Committee not later
than the day before the day on which such meeting is to be held. Notice of any
such meeting need not be given to any member of the Committee who submits a
signed waiver of notice whether before or after the meeting, or if he shall be
present at such meeting; and any meeting of the Committee shall be a legal
meeting without any notice thereof having been given, if all the members of the
Committee shall be present thereat. In the case of any meeting, in the absence
of the Chairman of the Executive Committee, such members as shall be designated
by the Chairman of the Executive Committee or the Executive Committee shall act
as Chairman of the meeting.
SECTION 3.02. Examining Committee. The Board, by resolution adopted by a
majority of the entire Board, shall appoint an Examining Committee composed of
not less than three of its members, none of whom shall be an officer of the
Bank, to hold office at its pleasure and one of whom shall be designated by the
Board as chairman thereof. The Committee shall make such examination into the
affairs of the Bank and its loans and discounts and make such reports in writing
thereof as may be directed by the Board or required by the Banking Law. The
attendance of one third of the members of the Committee, or the next highest
integer in the event of a fraction, at any meeting shall constitute a quorum,
and the act of a majority of those present at a meeting thereof at which a
quorum is present shall be the act of the Committee.
SECTION 3.03. Other Committees. The Board, by resolution adopted by a
majority of the entire Board, may appoint, from time to time, such other
committees composed of not less than three of its members for such purposes and
with such duties and powers as the Board may determine. The attendance of
one-third of the members of such other committees, or the next highest integer
in the event of a fraction, at any meeting shall constitute a quorum, and the
act of a majority of those present at a meeting thereof at which a quorum is
present shall be the act
ARTICLE IV
OFFICERS AND AGENTS
SECTION 4.01. Officers. The officers of the Bank shall be (a) a Chairman
of the Board, a President and one or more Vice Chairmen of the Board, each of
whom must be a director and shall be elected by the Board; (b) a Chief Financial
Officer, a Controller, a Secretary and a General Auditor, each of whom shall be
elected by the Board; and (c) may include a Chief Credit Officer, a Chief
Administrative Officer, a Chief Technology Officer, one or more Group Executives
and such other officers as may from time to time be elected by the Board or
under its authority, or appointed by the Chairman or the President or a Vice
Chairman of the Board.
SECTION 4.02. Clerks and Agents. The Board may elect and dismiss, or the
Chairman or the President or a Vice Chairman of the Board may appoint and
dismiss, or delegate to any other officers authority to appoint and dismiss,
such clerks, agents and employees as may be deemed advisable for the prompt and
orderly transaction of the Bank's business, and may prescribe, or authorize the
appointing officers to prescribe, their respective duties, subject to the
provisions of these By-laws.
SECTION 4.03. Term of Office. The officers designated in Section 4.01 (a)
shall be elected by the Board at its annul meeting. The officers designated in
Section 4.01 (b) may be elected at the annual or any other meeting of the Board.
The officers designated in Section 4.01 (c) may be elected at the annual or any
other meeting of the Board or appointed at any time by the designated proper
officers. Any vacancy occurring
3
<PAGE> 36
in any office designated in Section 4.01 (a) may be filled at any regular or
special meeting of the Board. The officers elected pursuant to Section 4.01 (a)
shall each hold office for the term of one year and until their successors are
elected, unless sooner disqualified or removed by a vote of two-thirds shall of
the whole Board. The officers elected by the Board pursuant to Section 4.01 (b)
of these By-laws shall hold office at the pleasure of the Board. All other
officers, clerks, agents and employees elected by the Board, or appointed by the
Chairman, the President or a Vice Chairman of the Board, or under their
authority, shall hold their respective offices at the pleasure of the Board or
officers elected pursuant to Section 4.01 (a).
SECTION 4.04. Chairman of the Board. The Chairman shall be the chief
executive officer of the Bank and shall have, subject to the control of the
Board, general supervision and direction of the policies and operations of the
Bank. He shall preside at all meetings of the stockholders and at all meetings
of the Board. He shall have the right to execute any document or perform any act
which could be or is required to be executed or performed by the President of
the Bank. He shall have the power to sign checks, orders, contracts, leases,
notes, drafts and other documents and instruments in connection with the
business of the Bank, and together with the Secretary or an Assistant Corporate
Secretary or execute conveyances of real estate and other documents and
instruments to which the seal of the Bank is affixed. He shall perform such
other duties as from time to time may be prescribed by the Board.
SECTION 4.05. President. The President shall, subject to the direction
and control of the Board and the Chairman, participate in the supervision of the
policies and operations of the Bank. In general, the President shall perform all
duties incident to the office of President, and such other duties as from time
to time may be prescribed by the Board or the Chairman. In the absence of the
Chairman, the President shall preside at meetings of stockholders and of the
Board. The President shall have the same power to sign for the Bank as is
prescribed in these By-laws for the Chairman.
SECTION 4.06. Vice Chairman of the Board. The Vice Chairman of the Board,
or if there be more than one, then each of them, shall, subject to the direction
and control of the Board and the Chairman, participate in the supervision of the
policies and operations of the Bank, and shall have other duties as may be
prescribed from time to time by the Board or the Chairman. In the absence of the
Chairman and the President, a Vice Chairman, as designated by the Chairman or
the Board, shall preside at meetings of the stockholders and the Board. Each
Vice Chairman have the same power to sign for the Bank as is prescribed in these
By-laws for the Chairman.
SECTION 4.07. Chief Financial Officer. The Chief Financial Officer shall
have such powers and perform such duties as the Board, the Chairman, the
President, or a Vice Chairman of the Board may from time to time prescribe,
which duties may include, without limitation, responsibility for strategic
planning, corporate finance, control, tax and auditing activities, and shall
perform such other duties as may be prescribed by these By-laws.
SECTION 4.08. Controller. The Controller shall exercise general
supervision of the accounting departments of the Bank. He shall be responsible
to the Chief Financial Officer and shall render reports from time to time
relating to the general financial condition of the Bank. He shall render such
other reports and perform such other duties as from time to time may be
prescribed by the Chief Financial Officer, a Vice Chairman of the Board, the
President or the Chairman.
SECTION 4.09. Secretary. The Secretary shall:
(a) record all the proceedings of the meetings of the stockholders,
the Board and the Executive Committee in one or more books kept for that
purpose;
(b) see that all notices are duly given in accordance with the
provisions of these By-laws or as required by law;
(c) be custodian of the seal of the Bank; and he may see that such
seal or a facsimile thereof is affixed to any documents the execution of
which on behalf of the Bank is duly authorized and may attest such seal
when so affixed; and
4
<PAGE> 37
(d) in general, perform all duties incident to the office of Secretary
and such other duties as from time to time may be prescribed by the Board
and the Chairman.
SECTION 4.10. General Auditor. The General Auditor shall exercise general
supervision of the Auditing Division. He shall audit the affairs of the Bank and
its subsidiaries, including appraisal of the soundness and adequacy of internal
controls and operating procedures and shall ascertain the extent of compliance
with policies and procedures of the Bank. He shall be responsible to the Board
and shall make such audits and prepare such regular reports as the Board, its
Examining Committee or the Chairman may, from time to time, require or as in his
judgment are necessary in the performance of his duties.
SECTION 4.11. Powers and Duties of Other Officers. The powers and duties
of all other officers of the Bank shall be those usually pertaining to their
respective officers, subject to the direction and control of the Board and as
otherwise provided in these By-laws.
SECTION 4.12. Fidelity Bonds. The Board, in its discretion, may require
any or all officers, agents, clerks and employees of the Bank to give bonds
covering the faithful performance of their duties or may obtain insurance
covering the same, in either case in form and amount approved by the Board, the
premiums thereon to be paid by the Bank.
ARTICLE V
CORPORATE SEAL
The corporate seal of the Bank shall be in the form of a circle and shall
bear the full name of the Bank and the words "Corporate Seal New York" together
with the logo of The Chase Manhattan Corporation.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Bank shall be the calendar year.
5
<PAGE> 38
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Right to Indemnification. The Bank shall to the fullest
extent permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness), or is threatened to be made so involved,
in any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, administrative or investigative (including, without
limitation, any action, suit or proceeding by or in the right of the Bank to
procure a judgment in its favor) (a "Proceeding") by reason of the fact that he
is or was a director, officer, employee or agent of the Bank, or is or was
serving at the request of the Bank as a director, officer or employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against all expenses (including attorney's fees), judgment, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such Proceeding. Such indemnification shall be a contract right and shall
include the right to receive payment in advance of any expenses incurred by the
Indemnitee in connection with such Proceeding, consistent with the provisions of
applicable law as then in effect.
SECTION 7.02. Contracts and Funding. The Bank may enter into contracts
with any director, officer, employee or agent of the Bank in furtherance of the
provisions of this Article VII and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article VII.
SECTION 7.03. Employee Benefit Plans. For purposes of this Article VII,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Bank" shall include any service as a director, officer, employee, or
agent of the Bank which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to any employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participant and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to be the best interests of a corporation.
SECTION 7.04. Indemnification Not Exclusive Right. The right of
indemnification and advancement of expenses provided in this Article VII shall
not be exclusive of any other rights to which a person seeking indemnification
may otherwise be entitled, under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. The provisions of this Article VII shall inure to the benefit of the
heirs and legal representatives of any person entitled to indemnity under this
Article VII and shall be applicable to Proceedings commenced or continuing after
the adoption of this Article VII whether arising from acts or omissions
occurring before or after such adoption.
SECTION 7.05. Advancement of Expenses: Procedures. In furtherance, but not
limitation, of the foregoing provisions, the following procedures and remedies
shall apply with respect to advancement of expenses and the right to
indemnification under this Article VII:
(a) Advancement of Expenses. All reasonable expenses incurred by or
on behalf of the Indemnitee in connection with any Proceeding shall be
advanced to the Indemnitee by the Bank within twenty (20) days after the
receipt by the Bank of a statement or statements from the Indemnitee
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the expense incurred by the Indemnitee and, if
required by the law at the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of the Indemnitee to repay
the amounts advanced if, and to the extent, it should ultimately be
determined that the Indemnitee is not entitled to be indemnified against
such expenses.
(b) Written Request for Indemnification. To obtain indemnification
under this Article VII, an Indemnitee shall submit to the Secretary of the
Bank a written request, including such documentation and information as is
reasonably available to the Indemnitee and reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documenta-
6
<PAGE> 39
tion"). The determination of the Indemnitee's entitlement to
indemnification shall be made within a reasonable time after receipt by the
Bank of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Bank shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing
that the Indemnitee has requested indemnification.
(c) Procedure for Determination. The Indemnitee's entitlement to
indemnification under this Article VII shall be determined (i) by the Board
by a majority vote of a quorum (as defined in Article VII of these By-laws)
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtained,
a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders, but only if a
majority of the disinterested directors, if they constitute a quorum of the
Board, presents the issue of entitlement to indemnification to the
stockholders for their determination.
ARTICLE VIII
BY-LAWS
SECTION 8.01. Inspection. A copy of the By-laws shall at all times be
kept in a convenient place at the principal office of the Bank, and shall be
open for inspection by stockholders during banking hours.
SECTION 8.02. Amendments. Except as otherwise specifically provided by
the statute, these Bylaws may be added to, amended, altered or repealed at any
meeting of the Board by vote of a majority of the entire Board, provided that
written notice of any such proposed action shall be given to each director prior
to such meeting, or that notice of such addition, amendment, alteration or
repeal shall have been given at the preceding meeting of the Board.
SECTION 8.03. Construction. The masculine gender, where appearing in these
By-laws, shall be deemed to include the feminine gender.
I, JEAN E. RUGANI, Assistant Corporate Secretary of THE CHASE MANHATTAN
BANK, New York, New York, hereby certify that the foregoing is a true and
correct copy of the By-laws of said Bank and that said By-laws are in full force
and effect on the date hereof.
Dated:
/s/ Jean E. Rugani
--------------------------------------
Jean E. Rugani
7
<PAGE> 40
EXHIBIT 7 TO FORM T-1
BANK CALL NOTICE
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
THE CHASE MANHATTAN BANK
OF 270 PARK AVENUE, NEW YORK, NEW YORK 10017
AND FOREIGN AND DOMESTIC SUBSIDIARIES,
A MEMBER OF THE FEDERAL RESERVE SYSTEM,
AT THE CLOSE OF BUSINESS MARCH 31, 1996, IN
ACCORDANCE WITH A CALL MADE BY THE FEDERAL RESERVE BANK OF THIS
DISTRICT PURSUANT TO THE PROVISIONS OF THE FEDERAL RESERVE ACT.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN MILLIONS
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........................... $ 3,391
Interest-bearing balances.................................................... 2,075
Securities:
Held to maturity securities.................................................... 3,607
Available for sale securities.................................................. 29,029
Federal Funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds sold........................................................... 1,264
Securities purchased under agreements to resell.............................. 354
Loans and lease financing receivables:
Loans and leases, net of unearned income............................. $73,216
Less: Allowance for loan and lease losses............................ 1,854
Less: Allocated transfer risk reserve................................ 104
--------
Loans and leases, net of unearned income, allowance, and reserve............. 71,258
Trading Assets................................................................. 25,919
Premises and fixed assets (including capitalized leases)....................... 1,337
Other real estate owned........................................................ 30
Investments in unconsolidated subsidiaries and associated companies............ 187
Customer's liability to this bank on acceptances outstanding................... 1,082
Intangible assets.............................................................. 419
Other assets................................................................... 7,406
--------
Total Assets......................................................... $147,358
========
</TABLE>
<PAGE> 41
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
--------------
(IN MILLIONS)
<S> <C> <C>
LIABILITIES
Deposits
In domestic offices................................................. $ 45,786
Noninterest-bearing................................................. $14,972
Interest-bearing.................................................... 30,814
-------
In foreign offices, Edge and Agreement subsidiaries, and IBF's...... 36,550
Noninterest-bearing................................................. $ 202
Interest-bearing.................................................... 36,348
-------
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's
Federal funds purchased............................................. 11,412
Securities sold under agreements to repurchase...................... 2,444
Demand notes issued to the U.S. Treasury.............................. 699
Trading liabilities................................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less....................... 11,305
With a remaining maturity of more than one year..................... 130
Mortgage indebtedness and obligations under capitalized leases........ 13
Bank's liability on acceptances executed and outstanding.............. 1,089
Subordinated notes and debentures..................................... 3,411
Other liabilities..................................................... 6,778
TOTAL LIABILITIES........................................... 139,615
--------
EQUITY CAPITAL
Common stock.......................................................... 620
Surplus............................................................... 4,664
Undivided profits and capital reserves................................ 3,058
Net unrealized holding gains (Losses) on available-for-sale
securities.......................................................... (607)
Cumulative foreign currency translation adjustments................... 8
TOTAL EQUITY CAPITAL........................................ 7,743
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY
CAPITAL................................................... $147,358
========
</TABLE>
<PAGE> 42
I, Joseph L. Sclafani, S.V.P. &
Controller of the above-named bank, do
hereby declare that this Report of
Condition has been prepared in
conformance with the instructions
issued by the appropriate Federal
regulatory authority and is true to
the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest
to the correctness of this Report of
Condition and declare that it has been
examined by us, and to the best of our
knowledge and belief has been prepared
in conformance with the instructions
issued by the appropriate Federal
regulatory authority and is true and
correct.
<TABLE>
<S> <C> <C>
WALTER V. SHIPLEY )
EDWARD D. MILLER ) Directors
THOMAS L. LABRECQUE )
</TABLE>
