As filed with the Securities and Exchange Commission on July 27, 1998
Registration No. 333-59165
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)
North Carolina 56-1473727
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
100 North Main Street 191 Peachtree Street,
Winston-Salem, North and N.E.
Carolina 27101 Atlanta, Georgia 30303
(336) 770-5000 (404) 332-5000
(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
(336) 732-5141
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
_________________________
Copy to:
George R. Krouse, Jr.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
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/<PAGE>
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). This Registration
Statement constitutes Post-Effective Amendment No. 2 to Registrant's
Registration Statement on Form S-3 (File No. 333-6319), and such Post-Effective
Amendment No. 2 shall hereafter become effective concurrently with the
effectiveness of this Registration Statement and in accordance with Section
8(c) of the Securities Act of 1933. Upon the effectiveness of such Post-
Effective Amendment No. 2, this Registration Statement and Registration
Statement No. 333-6319 will relate to an aggregate of $2,500,000,000 of Debt
Securities.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
$2,500,000,000
Wachovia Corporation
Debt Securities
_________________________
Wachovia Corporation (the "Corporation") may offer from time to time up to
$2,500,000,000 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
senior debt securities (the "Senior Securities") and/or 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
<PAGE>
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 July 27, 1998.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information 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, as amended (the "Securities Act"),
and to which reference is hereby made. The Corporation is an electronic filer,
and the Commission maintains a website (located at http:www.sec.gov) that
contains reports, proxy statements and other information regarding registrants
that file electronically.
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, 1997 and (b) the Corporation's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1998.
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
<PAGE>
Carolina 27101, Attention: General Counsel. Telephone requests may be directed
to (336) 770-5000.
WACHOVIA CORPORATION
Wachovia Corporation (the "Corporation" or "Wachovia"), a North Carolina
corporation, is an interstate bank holding company serving regional, national
and international markets and maintains dual headquarters in Atlanta, Georgia
and Winston-Salem, North Carolina. At March 31, 1998, Wachovia had total
assets of $65.1 billion, deposits of $39.9 billion, and a market capitalization
of $17.5 billion. Based on its consolidated asset size and market
capitalization at March 31, 1998, Wachovia ranked 18 and 16, respectively,
among domestic U.S. bank holding companies. Wachovia is a registered bank
holding company under the Bank Holding Company Act of 1956, as amended, and is
a savings and loan holding company within the meaning of the Home Owner's Loan
Act of 1933, as amended. Wachovia's common stock is traded on the New York
Stock Exchange under the symbol WB.
The Corporation has one principal banking subsidiary, Wachovia Bank,
National Association ("Wachovia Bank"), the assets of which currently
constitute substantially all of the assets of the Corporation. Wachovia Bank
is a national banking association headquartered in Winston-Salem, North
Carolina. As of March 31, 1998, Wachovia Bank had total assets of $63.4
billion and deposits of $40.6 billion.
Wachovia Bank currently offers credit and deposit services and investment
and trust services to consumers primarily located in Georgia, North Carolina,
South Carolina, Virginia and Florida and to corporations located both inside
and outside of the United States. Consumer products and services are provided
through a network of retail branches and ATMs as listed in the following table,
1-800-WACHOVIA On-Call 24 hour telephone banking, automated Phone Access, and
internet-based investing and banking at www.wachovia.com.
<TABLE>
<CAPTION>
As of
March 31, 1998
<S> <C>
Banking offices:
North Carolina 203
Georgia 131
South Carolina 125
Virginia 263
Florida 34
TOTAL 756
Automated banking machines:
North Carolina 437
<PAGE>
Georgia 288
South Carolina 276
Virginia 302
Florida 6
TOTAL 1,309
</TABLE>
The Corporation also has subsidiaries engaged in large corporate and
institutional relationship management and business development, corporate
leasing, remittance processing, insurance and brokerage services. In addition
to its domestic banking offices and international banking offices in London and
the Cayman Islands, the Corporation's subsidiaries have offices in Chicago, New
York, Hong Kong, S o Paulo and Tokyo.
The Corporation's growth strategy includes using acquisitions to gain
access to additional customers in attractive markets and to enhance product and
service capabilities. As such, the Corporation regularly evaluates acquisition
opportunities and conducts due diligence activities in connection with possible
acquisitions. As a result, acquisition discussions and, in some cases,
negotiations may take place and future acquisitions involving cash, debt or
equity securities may occur. Acquisitions typically involve the payment of a
premium over book value and, therefore, some dilution of the Corporation's book
value and net income per share may occur in connection with any future
transactions.
The Corporation's executive offices are 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 (336) 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. Wachovia Bank, as a national
banking association, is 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
(the "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 the OTS.
Wachovia Bank 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 Wachovia
<PAGE>
Bank 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 Wachovia
Bank 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.
Payment of Dividends and Other Restrictions
The Corporation is a legal entity separate and distinct from its
subsidiaries, including Wachovia Bank and Atlantic. There are various legal and
regulatory limitations on the extent to which the Corporation's subsidiaries,
including its bank and savings and loan subsidiaries, 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 amount of
dividends that may be paid by Wachovia Bank, without regulatory approval, is
limited to the lesser of the amounts calculated under a "recent earnings" test
and an "undivided profits" test. Under the recent earnings test, a dividend
may not be paid if the total of all dividends declared by a bank in any
calendar year is in excess of the current year's net income combined with the
retained net income of the two preceding years, unless the bank obtains the
approval of the Comptroller. Under the "undivided profits" test, a dividend
may not be paid in excess of a bank's "undivided profits". The relevant
regulatory agencies also have authority to prohibit a bank holding company,
which would include the 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
<PAGE>
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 $156 million as of December 31, 1997.
In addition, Wachovia Bank and its 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 also
are 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
March 31, 1998, the Corporation's total risk-based capital ratio was 11.64%,
including 8.87% 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 March 31, 1998, the Corporation's leverage capital ratio
was 8.91%.
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.
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
<PAGE>
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 (i) is based on realistic assumptions and (ii) 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, Wachovia
Bank. 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.
<PAGE>
FDIC Insurance Assessments
Wachovia Bank is 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
and the BIF ranges from 0% to 0.27%.
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 including and
excluding 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>
Three Months
Ended Year Ended December 31,
March 31,
1998 1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C> <C>
Including interest on deposits 1.49x 1.40x 1.52x 1.50x 1.64x 1.73x
Excluding interest on deposits 2.20x 1.98x 2.22x 2.15x 2.47x 3.38x
</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,
<PAGE>
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 also may 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 July 15, 1998 (the
"Subordinated Indenture") between the Corporation and The Chase Manhattan
Bank, 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. 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
<PAGE>
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 Applicable Trustee maintained for
such purpose in New York, New York, 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 office of the
Applicable Trustee is located in New York, New York. 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
<PAGE>
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 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, and 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
<PAGE>
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 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.
<PAGE>
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 within 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.
<PAGE>
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 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 or Principal Subsidiary 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 Bank which was the Principal Subsidiary Bank was
Wachovia Bank. 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
<PAGE>
(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 Subordinated 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.
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
<PAGE>
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 may be. (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 terms 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.
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
<PAGE>
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
<PAGE>
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 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
<PAGE>
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); (e) in the case of the 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)
<PAGE>
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 and serves as trustee with respect to the
6.625% Senior Notes due November 15, 2006 of the Corporation in the aggregate
principal amount of $200 million, which are outstanding pursuant to the Senior
Indenture. The Senior Indenture provides for the indemnification of the Senior
Trustee by the Corporation under certain circumstances.
The Subordinated Trustee. The Chase Manhattan Bank is also the
Subordinated Trustee under the Subordinated Indenture. The Subordinated
Indenture provides for the indemnification of the Subordinated Trustee by the
Corporation under certain circumstances.
<PAGE>
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
<PAGE>
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 at December
31, 1997 and 1996, and for each of the three years in the period ended December
31, 1997, appearing in this Prospectus and Registration Statement have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon and incorporated by reference elsewhere herein, which are based
in part on the reports of KPMG Peat Marwick LLP, independent auditors. The
financial statements referred to above are incorporated herein by reference in
reliance upon such reports given upon the authority of such firms as experts in
accounting and auditing.
The financial statements of Central Fidelity Bank at December 31, 1997 and
1996, and for each of the three years in the period ended December 31, 1997,
incorporated by reference in this Prospectus and Registration Statement have
been audited by KPMG Peat Marwick LLP, independent certified public
accountants, to the extent indicated in their report thereon. Such financial
statements have been included herein in reliance upon the report of KPMG Peat
Marwick LLP as experts in accounting and auditing.
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 Simpson Thacher & Bartlett, New York, New
York. As to matters of New York law, Mr. McAllister will rely on the opinion
of Simpson Thacher & Bartlett. From time to time, Simpson Thacher & Bartlett
may provide legal services to the Corporation and its subsidiaries.
<PAGE>
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, $2,500,000,000
if given or made, such information or Wachovia Corporation
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 Debt Securities
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. _________________________
_________________________
PROSPECTUS
_________________________
TABLE OF CONTENTS
Page
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 . . . . . . . 13
Experts . . . . . . . . . . . . . . 14
Legal Matters . . . . . . . . . . . 14
<PAGE>
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>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration
fee . . . . . . . . . . . . . . . . . . . . . . . $392,672
Blue Sky fees and expenses . . . . . . . . . . . $ 2,500
Accounting services . . . . . . . . . . . . . . . $ 20,000
Printing and engraving . . . . . . . . . . . . . $ 20,000
Fees of indenture trustees. . . . . . . . . . . . $ 40,000
Rating agency fees . . . . . . . . . . . . . . . $ 15,000
Miscellaneous . . . . . . . . . . . . . . . . . . $ 9,828
Total . . . . . . . . . . . . . . . . . . . . . . $500,000
</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 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
II-1
<PAGE>
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.
Item 16. Exhibits.
See Exhibit Index.
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 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
II-2
<PAGE>
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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Winston-Salem, State of North
Carolina, on July 27, 1998.
WACHOVIA CORPORATION
By: L. M. Baker, Jr.*
L. M. Baker, Jr.
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
behalf of the registrant and in the capacities indicated, on July 27, 1998.
Signature Capacity
Chairman, President, Chief
L. M. Baker, Jr.* Executive Officer and
L. M. Baker, Jr. Director (Principal
Executive Officer)
Chairman Emeritus
John G. Medlin, Jr.*
John G. Medlin, Jr.
Director
James S. Balloun*
James S. Balloun
Director
James F. Betts*
James F. Betts
II-4
<PAGE>
Director
Peter C. Browning*
Peter C. Browning
Director
John T. Casteen III*
John T. Casteen III
Director
John L. Clendenin*
John L. Clendenin
Director
Lawrence M. Gressette, Jr.*
Lawrence M. Gressette, Jr.
Director
Thomas K. Hearn, Jr.*
Thomas K. Hearn, Jr.
Director
George W. Henderson, III*
George W. Henderson, III
Director
W. Hayne Hipp*
W. Hayne Hipp
Director
Robert A. Ingram*
Robert A. Ingram
Director
Lloyd U. Noland, III*
Lloyd U. Noland, III
Director
Sherwood H. Smith, Jr.*
Sherwood H. Smith, Jr.
Director
John C. Whitaker, Jr.*
John C. Whitaker, Jr.
II-5
<PAGE>
Senior Executive Vice President
Robert S. McCoy, Jr.* and Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial Officer)
Executive Vice President,
Donald K. Truslow* Comptroller and Treasurer
Donald K. Truslow and (Principal Accounting
Officer)
*By: /s/ Alice Washington Grogan
Alice Washington Grogan
Attorney-in-Fact
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
No.
-------
* (1) -- Form of Underwriting Agreement (incorporated by
reference to Exhibit 1 from the Corporation's
Registration Statement on Form S-3 (Registration
Statement No. 33-6280)).
* (4)(a) -- Indenture dated as of August 15, 1996 between the
Corporation and The Chase Manhattan Bank, as
Trustee, relating to the Senior Securities
(incorporated by reference to Exhibit 4(a) to the
Corporation's Registration Statement on Form S-3
(Registration No. 33-6280)).
(4)(b) -- Form of Indenture dated as of July 15, 1998 between
the Corporation and The Chase Manhattan Bank, as
Trustee, relating to the Subordinated Securities.
* (5)(a) -- Opinion of Kenneth W. McAllister, General Counsel
of the Corporation.
* (5)(b) -- Opinion of Simpson Thacher & Bartlett.
* (12) -- Statement setting forth computation of the ratio of
earnings to fixed charges.
* (23)(a) -- Consent of Ernst & Young LLP.
* (23)(b) -- Consent of KPMG Peat Marwick LLP.
* (23)(c) -- Consent of Kenneth W. McAllister, General Counsel
of the Corporation (included in Exhibit 5(a)).
* (23)(d) -- Consent of Simpson Thacher & Bartlett (included
in Exhibit 5(b)).
* (24) -- Powers of Attorney of Directors and Officers of the
Corporation (included in signature page).
* (25)(a) -- Statement of eligibility of the Senior Trustee on
Form T-1 with respect to the Senior Securities.
(25)(b) -- Statement of eligibility of the Subordinated
Trustee on Form T-1 with respect to the
Subordinated Securities.
- ------------------------
* Previously filed.
II-7
EXHIBIT 4(b)
WACHOVIA CORPORATION
TO
THE CHASE MANHATTAN BANK,
Trustee
INDENTURE
Dated as of July 15, 1998
Providing for the issuance of
subordinated debt securities in series
<PAGE>
WACHOVIA CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture dated as of July 15, 1998
Trust Indenture Indenture
Act Section Section
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, 513
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Additional Senior Obligations . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
control . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Bard Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request" or "Company Order . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1989 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
1993 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 5
Primary Federal Regulator . . . . . . . . . . . . . . . . . . . 5
Ranking Junior to the Securities . . . . . . . . . . . . . . . . 5
NOTE: This table of contents shall not, for any
purposes, be deemed to be a part of the
Indenture.
<PAGE>
Ranking on a Parity with the Securities . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register", "Security Registrar" and "Co-Security
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . 7
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . 7
Section 104. Acts of Holders . . . . . . . . . . . . . . . . 8
Section 105. Notices, Etc., to Trustee and
Company . . . . . . . . . . . . . . . . . 8
Section 106. Notice to Holders; Waiver . . . . . . . . . . . 9
Section 107. Conflict With Trust Indenture Act . . . . . . . 9
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . 9
Section 109. Successors and Assigns . . . . . . . . . . . . 9
Section 110. Separability Clause . . . . . . . . . . . . . . 9
Section 111. Benefits of Indenture . . . . . . . . . . . . . 10
Section 112. Governing Law . . . . . . . . . . . . . . . . . 10
Section 113. Legal Holidays . . . . . . . . . . . . . . . . 10
ARTICLE TWO
SECURITY FORMS . . . . . . . . 10
Section 201. Forms Generally . . . . . . . . . . . . . . . . 10
Section 202. Form of Face of Security. . . . . . . . . . . . 11
Section 203. Form of Reverse of Security . . . . . . . . . . 14
Section 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 17
Section 205. Issuance of Book-Entry Securities . . . . . . . 17
ARTICLE THREE
THE SECURITIES . . . . . . . . 18
Section 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . 18
Section 302. Denominations . . . . . . . . . . . . . . . . . 19
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . 20
Section 304. Temporary Securities . . . . . . . . . . . . . 21
Section 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . 21
<PAGE>
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . 23
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . 24
Section 308. Persons Deemed Owners . . . . . . . . . . . . . 25
Section 309. Cancellation . . . . . . . . . . . . . . . . . 25
Section 310. Computation of Interest . . . . . . . . . . . . 25
Section 311. Regarding Beneficial Ownership
Interests in Book-Entry
Securities . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . 26
Section 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . 26
Section 402. Application of Trust Money . . . . . . . . . . 27
ARTICLE FIVE
REMEDIES . . . . . . . . . 27
Section 501. Events of Default . . . . . . . . . . . . . . . 27
Section 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . 28
Section 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . 29
Section 504. Trustee May File Proofs of Claim . . . . . . . 29
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 30
Section 506. Application of Money Collected . . . . . . . . 30
Section 507. Limitation on Suits . . . . . . . . . . . . . . 30
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 31
Section 509. Restoration of Rights and Remedies . . . . . . 31
Section 510. Rights and Remedies Cumulative . . . . . . . . 31
Section 511. Delay or Omission Not Waiver . . . . . . . . . 32
Section 512. Control by Holders . . . . . . . . . . . . . . 32
Section 513. Waiver of Past Defaults . . . . . . . . . . . . 32
Section 514. Undertaking for Costs . . . . . . . . . . . . . 32
Section 515. Waiver of Stay or Extension Laws . . . . . . . 33
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . 33
Section 601. Certain Duties and Responsibilities . . . . . . 33
Section 602. Notice of Defaults . . . . . . . . . . . . . . 34
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . 35
Section 605. May Hold Securities . . . . . . . . . . . . . . 35
Section 606. Money Held in Trust . . . . . . . . . . . . . . 35
Section 607. Compensation and Reimbursement . . . . . . . . 36
<PAGE>
Section 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . 36
Section 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . 36
Section 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . 37
Section 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . 38
Section 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . 39
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . 39
Section 614. Appointment of Authenticating Agent . . . . . . . 39
ARTICLE SEVEN
LISTS OF HOLDERS AND REPORTS BY TRUSTEE AND COMPANY . . . . 41
Section 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . 41
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . 41
Section 703. Reports by Trustee . . . . . . . . . . . . . . . 42
Section 704. Reports by Company . . . . . . . . . . . . . . . 42
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . 42
Section 801. Company May Consolidate, Etc. Only
on Certain Terms . . . . . . . . . . . . . 42
Section 802. Successor Corporation Substituted . . . . . . . . 43
Section 803. Assumption by Subsidiary of
Company's Obligations . . . . . . . . . . 43
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . 44
Section 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . 44
Section 902. Supplemental Indentures With
Consent of Holders . . . . . . . . . . . 46
Section 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . 47
Section 904. Effect of Supplemental Indentures . . . . . . . . 47
Section 905. Conformity With Trust Indenture Act . . . . . . . 47
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . 47
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . 47
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 47
Section 1002. Maintenance of Office or Agency . . . . . . . . . 47
<PAGE>
Section 1003. Money for Securities Payments to be
Held in Trust . . . . . . . . . . . . . . 48
Section 1004. Corporate Existence . . . . . . . . . . . . . . 49
Section 1005. Statement as to Compliance . . . . . . . . . . 49
Section 1006. Waiver of Certain Covenants . . . . . . . . . . 50
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . 50
Section 1101. Applicability of Article . . . . . . . . . . . 50
Section 1102. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . . . . . 50
Section 1103. Selection by Trustee of Securities
to be Redeemed . . . . . . . . . . . . . . . 50
Section 1104. Notice of Redemption . . . . . . . . . . . . . 51
Section 1105. Deposit of Redemption Price . . . . . . . . . . 51
Section 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . 51
Section 1107. Securities Redeemed in Part . . . . . . . . . . 52
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . 52
Section 1201. Applicability of Article . . . . . . . . . . . 52
Section 1202. Satisfaction of Sinking Fund
Payments With Securities . . . . . . . . . . 52
Section 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . 53
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES . . . . . . . . . . 53
Section 1301. Agreement to Subordinate . . . . . . . . . . . 53
Section 1302. Obligation of the Company
Unconditional . . . . . . . . . . . . . . 55
Section 1303. Notice to Trustee of Facts
Prohibiting Payment . . . . . . . . . . . 55
Section 1304. Application by Trustee of Moneys
Deposited With It . . . . . . . . . . . . 56
Section 1305. Subrogation to Rights of Holders of
Senior Indebtedness and
Additional Senior Obligations . . . . . . 56
Section 1306. Subordination Rights Not Impaired
by Acts or Omissions of
Company, Holders of Senior
Indebtedness or Holders of
Additional Senior Obligations . . . . . . 56
Section 1307. Authorization of Trustee to
Effectuate Subordination of
Securities . . . . . . . . . . . . . . . . 56
<PAGE>
Section 1308. Right of Trustee to Hold Senior
Indebtedness and Additional
Senior Obligations . . . . . . . . . . . . 57
Section 1309. Article Thirteen Not to Prevent
Events of Default . . . . . . . . . . . . 57
Section 1310. Article Applicable to Paying Agents . . . . . . 57
Section 1311. Reliance on Judicial Order or
Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . 57
Section 1312. Trustee Not Fiduciary for Holders
of Senior Indebtedness or
Holders of Additional Senior
Obligations . . . . . . . . . . . . . . . 57
Section 1313. Payment Permitted If No Default . . . . . . . . 58
Section 1314. Regarding Securities Issued Under
the 1989 Indenture or the 1993
Indenture . . . . . . . . . . . . . . . . 58
ARTICLE FOURTEEN
HOLDERS' MEETINGS . . . . . . . . . . . . 58
Section 1401. Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . 58
Section 1402. Manner of Calling Meetings . . . . . . . . . . . 59
Section 1403. Call of Meetings by Company or
Holders . . . . . . . . . . . . . . . . 59
Section 1404. Who May Attend and Vote at Meetings . . . . . . 59
Section 1405. Regulations May be Made by Trustee . . . . . . 59
Section 1406. Evidence of Actions by Holders . . . . . . . . 59
Section 1407. Exercise of Rights of Trustee and
Holders Not to be Hindered or
Delayed . . . . . . . . . . . . . . . . . 60<PAGE>
INDENTURE, dated as of July 15, 1998, 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
subordinated 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 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.
<PAGE>
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Senior Obligations" means all indebtedness of the
Company for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar
arrangements, whether outstanding on the date of execution of this Indenture
or thereafter created, assumed or incurred, provided, however, that
Additional Senior Obligations shall not include claims in respect of Senior
Indebtedness or any obligation (i) Ranking Junior to the Securities or (ii)
Ranking on a Parity with the Securities. For purposes of this definition,
"claim" shall have the meaning assigned thereto in Section 101(4) of the
Bankruptcy Code of 1978, as amended and in effect on the date of execution of
this Indenture.
"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 offices 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 the 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
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.
<PAGE>
"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.
"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.
"1989 Indenture" means the Indenture dated as of August 22, 1989,
as supplemented and amended by the First Supplemental Indenture dated as of
September 15, 1989.
"1993 Indenture" means the Indenture dated as of March 1, 1993.
"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.
<PAGE>
"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
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
<PAGE>
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 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.
"Ranking Junior to the Securities", when used with respect to any
obligation of the Company, means any obligation of the Company which (a)
ranks junior to and not equally with or prior to the Securities in right of
payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section 1301, and (b) is specifically
<PAGE>
designated as ranking junior to the Securities by express provisions in the
instrument creating or evidencing such obligation.
"Ranking on a Parity with the Securities", when used with respect
to any obligation of the Company, means any obligation of the Company which
(a) ranks equally with and not prior to the Securities in right of payment
upon the happening of any event of the kind specified in the first sentence
of the first paragraph of Section 1301, and (b) is specifically designated as
ranking on a parity with the Securities by express provision in the
instrument creating or evidencing such obligation. The securing of any
obligations of the Company, otherwise Ranking on a Parity with the Securities
or Ranking Junior to the Securities, is not deemed to prevent such
obligations from constituting obligations Ranking on a Parity with the
Securities or Ranking Junior to the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the trust committee, any 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.
"Senior Indebtedness" means (a) all indebtedness of the Company for
money borrowed, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred except (i) the
Securities, (ii) the Company's 7% Subordinated Notes due 1999, issued and
outstanding under the 1989 Indenture, (iii) the Company's 6 3/8% Subordinated
Notes due 2003, 6 3/8% Subordinated Notes due 2009, 6.80% Subordinated Notes
due 2005 and 6.605% Subordinated Notes due October 1, 2025, issued and
outstanding under the 1993 Indenture, (iv) any obligation Ranking on a Parity
with the Securities, or (v) any obligation Ranking Junior to the Securities
and (b) any deferrals, renewals or extensions of any such Senior
Indebtedness. As used in the preceding sentence, the term "indebtedness of
the Company for money borrowed" shall mean any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase
<PAGE>
price of property or assets acquired other than in the ordinary course of
business.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation, 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 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:
<PAGE>
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, 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 each 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
<PAGE>
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.
(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 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
<PAGE>
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
hereunder, 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 and 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
<PAGE>
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
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 ____________, 19__.]
<PAGE>
WACHOVIA CORPORATION
___________ Subordinated _____________
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 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,
<PAGE>
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>
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 July 15, 1998 (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 Senior Indebtedness, the holders of Additional Senior
Obligations and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof[, 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,
Redemption Redemption
Price Year Price Year
---------- -----------
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 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,
<PAGE>
Redemption Price For Redemption Redemption Price For Redemption
Through Operation Otherwise Than Through Operation
of the Sinking Fund of the Sinking Fund
------------------- --------------------------------
Year
- -----
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.]
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, to
the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness and, under
certain circumstances, to Additional Senior Obligations, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions and (b) authorizes and directs the Trustee on his
<PAGE>
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided.
[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 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 comment 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, places 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.
<PAGE>
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.
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."
<PAGE>
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
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;
(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;
<PAGE>
(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) 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
(13) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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.
<PAGE>
The Securities shall be subordinated to Senior Indebtedness and,
under certain circumstances, to Additional Senior Obligations as provided in
Article Thirteen.
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 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
<PAGE>
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 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.
<PAGE>
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 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 exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
<PAGE>
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
denomination 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
<PAGE>
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 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.
<PAGE>
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
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 the 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>
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 this 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, and
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.
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
<PAGE>
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company, in the case of (i), (ii),
or (iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose 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
(3) the Company has delivered to the Trustee an Officer's
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 1008 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
<PAGE>
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", whenever 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 occasioned by the provisions of
Article 13 or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or 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 the 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 at 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) 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
(6) 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
(7) any other Event of Default provided with respect to Securities
of such series specified as contemplated by Section 301.
<PAGE>
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clauses (5) or (6) of Section
501 with respect to Securities of any series at the time Outstanding (a
"Bankruptcy Event of Default") 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
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 Bankruptcy 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,
<PAGE>
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 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 of 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 any 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
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
<PAGE>
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 other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of 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,
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;
<PAGE>
(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 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
<PAGE>
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 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 attorney's fees, against any party litigant in such suit, having
<PAGE>
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 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 prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
<PAGE>
(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 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:
<PAGE>
(a) the Trustee may conclusively rely and shall be fully 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, conclusively rely upon an Officer's 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;
(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 direction, 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,
custodians, nominees or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent,
custodian, nominee 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.
<PAGE>
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 603 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of 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, employees 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.
<PAGE>
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. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be
deemed to have a conflicting interest by virtue of being the trustee under
the indenture dated as of August 15, 1996 and with respect to all series of
securities issued or issuable under such indenture.
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
(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
<PAGE>
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 other 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 other 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 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
<PAGE>
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 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
<PAGE>
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (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 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 purpose 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
<PAGE>
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
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.
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
In the event that the Trustee is also acting as Paying Agent or
Transfer Agent and Registrar hereunder, the rights and protections afforded
to the Trustee pursuant to Article VI shall also be afforded to such Paying
Agent or Transfer Agent and Registrar.
<PAGE>
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 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 1999, 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.
<PAGE>
(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.
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.
<PAGE>
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 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 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)
<PAGE>
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.
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
<PAGE>
(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 change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(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 Holders 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
(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 any such Securities shall be
subordinated to Senior Indebtedness, and under certain circumstances,
Additional Senior Obligations, as provided in Article Thirteen; provided
further, 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.
<PAGE>
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 or of 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 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 the provisions of this Indenture with respect to
subordination of the Securities in a manner adverse to the Holders of
such series, or
(4) 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.
<PAGE>
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 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
<PAGE>
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt, written
notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such 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.
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
<PAGE>
(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 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. 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
<PAGE>
(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 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1004 with 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)
<PAGE>
of 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.
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.
<PAGE>
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.
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.
<PAGE>
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, 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 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 Section 1106 and
1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of a Security likewise covenants and agrees by his
acceptance thereof, that the obligation of the Company to make any payment on
account of the principal of (and premium, if any) and interest on each and
all of the Securities shall be subordinate and junior in right of payment to
the Company's obligations to the holders of Senior Indebtedness and, under
the circumstances described in clause (ii) of this sentence, to the holders
of Additional Senior Obligations, to the extent provided herein, and that in
the case 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 Company as
a whole, whether voluntary or involuntary, (i) all obligations to holders of
Senior Indebtedness shall be entitled to be paid in full before any payment
shall be made on account of the principal of (and premium, if any) or
interest on the Securities and, (ii) if after giving effect to the operation
of clause (i) above, (A) any amount of cash, property or securities remains
available for payment or distribution in respect of the Securities ("Excess
Proceeds") and (B) creditors in respect of Additional Senior Obligations have
<PAGE>
not received payment in full of amounts due or to become due thereon or
payment of such amounts have 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 shall be made on
account of the principal of (and premium, if any) or interest on the
Securities. In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness and Additional Senior
Obligations, the Holders of the Securities, together with the holders of any
obligations of the Company Ranking on a Parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at
the time due and owing on account of unpaid principal of (and premium, if
any) and interest on the Securities before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any
capital stock or any obligations of the Company Ranking Junior to the
Securities. In addition, in the event of any such proceeding, if any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Securities, shall be received by the Trustee or the Holders of the Securities
before all Senior Indebtedness and Additional Senior Obligations are paid in
full and if the Holder or the Trustee, as the case may be, receiving such
payment is aware at the time of receipt that all Senior Indebtedness and
Additional Senior Obligations have not been paid in full, then such payment
or distribution shall, if received by any Holder, be held in trust for the
benefit of the holders of Senior Indebtedness and/or Additional Senior
Obligations, as the case may be or, if received by the Trustee, shall be held
by it and delivered forthwith to the trustee in bankruptcy, receiver,
assignee, agent or other Person making payment or distribution of the assets
of the Company, and, in each case, shall be applied to the payment of all
Senior Indebtedness and Additional Senior Obligations remaining unpaid, until
all such Senior Indebtedness and Additional Senior Obligations shall have
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness and Additional Senior
Obligations. For purposes of this paragraph only, the words, "cash, property
or securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
company provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness and Additional
Senior Obligations which may at the time be outstanding to substantially the
same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article.
The subordination provisions of the foregoing paragraph shall not
be applicable to amounts at the time due and owing on the Securities on
account of the unpaid principal of (and premium, if any) or interest on the
Securities for the payment of which funds have been deposited in trust with
the Trustee or have been set aside by the Company in trust in accordance with
the provisions of this Indenture; nor shall such provisions impair any
rights, interests, remedies or powers of any secured creditor of the Company
in respect of any security the creation of which is not prohibited by the
provisions of this Indenture.
If there shall have occurred and be continuing (a) a default in any
payment with respect to any Senior Indebtedness or (b) an event of default
with respect to any Senior Indebtedness as a result of which the maturity
thereof is accelerated, unless and until such payment default or event of
<PAGE>
default shall have been cured or waived or shall have ceased to exist, no
payments shall be made by the Company with respect to the principal of (or
premium, if any) or interest on the Securities. The provisions of this
paragraph shall not apply to any payment with respect to which the first
paragraph of this Section would be applicable.
The securing of any obligations of the Company Ranking on a Parity
with the Securities or obligations Ranking Junior to the Securities shall not
be deemed to prevent such obligations from constituting obligations of the
Company Ranking on a Parity with the Securities or obligations Ranking Junior
to the Securities.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance, or transfer,
comply with the conditions set forth in Article Eight.
Section 1302. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture is
intended to or shall impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities when, where and as the same
shall become due and payable, all in accordance with the terms of the
Securities, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors other than the holders of Senior
Indebtedness and Additional Senior Obligations, nor shall anything herein or
therein prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon an Event of Default under
this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness and Additional Senior Obligations in respect
of cash, property, or securities of the Company received upon the exercise of
any such remedy.
Section 1303. Notice to Trustee of Facts Prohibiting Payment.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee located at the Corporate Trust Office of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received at its Corporate Trust
Office written notice thereof from the Company or a holder of Senior
Indebtedness or Additional Senior Obligations or from any trustee therefor,
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all respects to assume
<PAGE>
that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it during or after such
three Business Day period.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness or Additional
Senior Obligations (or a trustee therefor) to establish that such notice has
been given by a holder of Senior Indebtedness or Additional Senior
Obligations (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness or Additional
Senior Obligations to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness or Additional Senior Obligations held by such Person, the extent
to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this distribution and any other facts pertinent to the rights of such Person
under this Article, and if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1304. Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any
deposit of moneys by the Company with the Trustee or any other agent (whether
or not in trust) for any payment of the principal of (and premium, if any) or
interest on any Securities shall, except as provided in Section 1303, be
subject to the provisions of Section 1301.
Section 1305. Subrogation to Rights of Holders of Senior
Indebtedness and Additional Senior Obligations.
Subject to the payment in full of all Senior Indebtedness and
Additional Senior Obligations, the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness and the rights
of holders of Additional Senior Obligations to receive payments or
distributions of assets of the Company applicable to such Senior Indebtedness
or Additional Senior Obligations, as the case may be, until the principal of
(and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, none of the payments or distributions to
the holders of the Senior Indebtedness or to the holders of Additional Senior
Obligations to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, or of payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness or to the holders of Additional Senior Obligations by Holders of
the Securities or the Trustee shall, as among the Company, its creditors
other than holders of Senior Indebtedness, holders of Additional Senior
Obligations and the Holders of the Securities, be deemed to be a payment or
<PAGE>
distribution by the Company to or on account of the Senior Indebtedness or
the Additional Senior Obligations, as the case may be; it being understood
that the provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness and the holders of Additional
Senior Obligations on the other hand.
Section 1306. Subordination Rights Not Impaired by Acts or
Omissions of Company, Holders of Senior Indebtedness or Holders of Additional
Senior Obligations.
No right of any present or future holders of any Senior
Indebtedness or Additional Senior Obligations to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
Section 1307. Authorization of Trustee to Effectuate Subordination
of Securities.
Each Holder of a Security, by his acceptance thereof, authorizes
and expressly directs the Trustee on his behalf to take such actions as may
be necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
If, in the event of any proceeding or other action relating to the
Company referred to in the first sentence of Section 1301, a proper claim or
proof of debt in the form required in such proceeding or action is not filed
by or on behalf of the Holders of the Securities prior to fifteen days before
the expiration of the time to file such claim or claims, then the holder or
holders of Senior Indebtedness and Additional Senior Obligations shall have
the right to file and are hereby authorized to file appropriate claim for and
on behalf of the Holders of the Securities; provided, that no such filing by
any holders of Senior Indebtedness or Additional Senior Obligations shall
preclude the Trustee from filing such a proof of claim on behalf of the
Holders of Securities.
Section 1308. Right of Trustee to Hold Senior Indebtedness and
Additional Senior Obligations.
The Trustee in its individual capacity shall be entitled to all of
the rights set forth in this Article in respect of any Senior Indebtedness or
Additional Senior Obligations at any time held by it in its individual
capacity to the same extent as any other holder of such Senior Indebtedness
or Additional Senior Obligations, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate to Senior Indebtedness or
Additional Senior Obligations the claims of the Trustee under Section 607.
<PAGE>
Section 1309. Article Thirteen Not to Prevent Events of Default.
The failure to make a payment pursuant to the Securities by reason
of any provision in this Article shall not be construed as preventing the
occurrence of an Event of Default.
Section 1310. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the content
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1308 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1311. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness, Additional Senior Obligations and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 1312. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Holders of Additional Senior Obligations.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or the holders of Additional Senior
Obligations and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person, cash, property or securities to which any
holders of Senior Indebtedness or Additional Senior Obligations shall be
entitled by virtue of this Article or otherwise.
Section 1313. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent the Company, at any time except during
the case of any insolvency, receivership, conservatorship, reorganization,
readjustment or debt, marshalling of assets and liabilities or similar
proceedings or any liquidation or winding-up of or relating to the Company
referred to in Section 1301 from making payments at any time of principal of
(and premium, if any) or interest on the Securities.
<PAGE>
Section 1314. Regarding Securities Issued Under the 1989 Indenture
or the 1993 Indenture.
For purposes of the 1989 Indenture and the 1993 Indenture, the
Securities will not be "Senior Indebtedness" (as such term is defined in
Section 101 of the 1989 Indenture and Section 101 of the 1993 Indenture), but
the Securities will be treated as "Ranking on a Parity with the Securities"
(as such term is defined in Section 101 of the 1989 Indenture and Section 101
of the 1993 Indenture), except to the extent that, upon the happening of any
event of the kind specified in the first sentence of the first paragraph of
Section 1301, the Holders of the Securities may, under certain circumstances
in which there are obligations of the Company to creditors other than holders
of Senior Indebtedness and holders of Additional Senior Obligations, be
entitled to be paid from the remaining assets of the Company before any
payment is made on account of securities issued under the 1989 Indenture or
the 1993 Indenture.
ARTICLE FOURTEEN
HOLDERS' MEETINGS
Section 1401. 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 Section 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 1402. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any
action specified in Section 1401. 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, 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
<PAGE>
Trustee are either present or have, before or after the meeting, waived
notice.
Section 1403. 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
1401 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 in Winston-Salem, North Carolina for
such meeting and may call such meeting to take any action authorized in
Section 1401, by mailing notice thereof as provided in Section 1402.
Section 1404. 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 1405. 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.
Section 1406. 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 1407. Exercise of Rights of Trustee and Holders Not to be
Hindered or Delayed.
<PAGE>
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.
<PAGE>
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:
[SEAL]
Attest:
THE CHASE MANHATTAN BANK,
as Trustee
By:
[SEAL]
Attest:
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the day of , 1998, before me personally came
, to me known, who, being by me duly sworn, did
depose and say that is of
Wachovia Corporation, one of the corporations described in and which executed
the foregoing instrument; that knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that signed name thereto by
like authority.
Notary Public,
My Commission Expires , 199
STATE OF )
) ss:
COUNTY OF )
On the day of , 1998, before me personally came
, to me known, who, being by me duly sworn, did
depose and say that is a of The
Chase Manhattan Bank, one of the corporations described in and which executed
the foregoing instrument; that knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that signed name thereto by
like authority.
Notary Public,
My Commission Expires , 199
<PAGE>
Exhibit 25(b)
- ----------------------------------------------------------------------------
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)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
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)
North Carolina 56-1473727
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 North Main Street
Winston-Salem, North Carolina 27101
(Address of principal executive offices) (Zip Code)
_____________________________________
Subordinated Debt Securities
(Title of the indenture securities)
_______________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
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 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
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. On July 14,
1996, in connection with the merger of Chemical Bank and The Chase Manhattan
Bank (National Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
<PAGE>
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
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. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
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 24th
day of July, 1998.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
----------------------
Joanne Adamis
Second Vice President
<PAGE>
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, 1998, 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
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bering balances and currency and coin . . . . $ 12,037
Interest-bearing balances . . . . . . . . . . . . . . . . 4,054
Securities: . . . . . . . . . . . . . . . . . . . . . . . . .
Held to maturity securities . . . . . . . . . . . . . . . . 2,340
Available for sale securities . . . . . . . . . . . . . . . . 50,134
Federal funds sold and securities purchased under
agreements to resell . . . . . . . . . . . . . . . . . . . 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . $127,958
Less: Allowance for loan and lease losses . . . . . . . . 2,797
Less: Allocated transfer risk reserve . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance,
and reserve . . . . . . . . . . . . . . . . . . . . . . 125,161
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . 61,820
Premises and fixed assets (including capitalized leases) . . 2,961
Other real estate owned . . . . . . . . . . . . . . . . . . . 347
Investments in unconsolidated subsidiaries and associated
companies . . . . . . . . . . . . . . . . . . . . . . . . . 242
Customers' liability to this bank on acceptances outstanding 1,380
Intangible assets . . . . . . . . . . . . . . . . . . . . . . 1,549
Other assets . . . . . . . . . . . . . . . . . . . . . . . . 11,727
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . $298,734
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . $ 96,682
Noninterest-bearing . . . . . . . . . . . . . . . . . . . $ 38,074
Interest-bearing . . . . . . . . . . . . . . . . . . . . . 58,608
In foreign offices, Edge and Agreement, subsidiaries and
IBF's . . . . . . . . . . . . . . . . . . . . . . . . . . 72,630
Noninterest-bearing . . . . . . . . . . . . . . . . . . . $ 3,289
Interest-bearing . . . . . . . . . . . . . . . . . . . . . 69,341
<PAGE>
Federal funds purchased and securities sold under
agreements to repurchase . . . . . . . . . . . . . . . . . 42,735
Demand notes issued to the U.S. Treasury . . . . . . . . . . 872
Trading liabilities . . . . . . . . . . . . . . . . . . . . . 45,545
Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
With a remaining maturity of one year or less . . . . . . . . 4,454
With a remaining maturity of more than one year through
three years . . . . . . . . . . . . . . . . . . . . . . . . 231
With a remaining maturity of more than three years . . . . . 106
Banks's liability on acceptances executed and outstanding . . 1,380
Subordinated notes and debentures . . . . . . . . . . . . . . 5,708
Other liabilities . . . . . . . . . . . . . . . . . . . . . . 11,295
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . 281,638
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . 1,211
Surplus (exclude all surplus related to preferred stock) . . 10,291
Undivided profits and capital reserves . . . . . . . . . . . 5,579
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . (1)
Cumulative foreign currency translation adjustments . . . . . 16
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . 17,096
TOTAL LIABILITIES AND EQUITY CAPITAL $298,734
</TABLE>
I, Joseph L. Sclafani, E.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.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
