<PAGE>
As filed with the Securities and Exchange Commission on May 24, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
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 jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
and
100 North Main Street 191 Peachtree Street,
Winston-Salem, North Carolina 27101 N.E. 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]
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. [_]
--------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered(1) Per Unit(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Debt Securities Total.. $1,700,000,000(3) 100% $1,700,000,000 $472,600(4)
</TABLE>
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(1) In U.S. dollars or equivalent thereof in other currencies, including
composite currencies, on the basis of exchange rates on the date an
agreement to issue and sell the applicable Debt Securities is entered
into.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Such amount represents the principal amount of any Debt Securities issued
at their principal amount and the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount. Such
amount does not include the unsold $800,000,000 aggregate principal amount
of Debt Securities of the Registrant registered under the previously filed
Registration Statement on Form S-3 (File No. 333-59165), to which this
Registration Statement also constitutes Post-Effective Amendment No. 2.
(4) Determined pursuant to Section 6(b) of the Securities Act. A registration
fee of $236,000 related to the unsold $800,000,000 of Debt Securities
registered under Registration Statement No. 333-59165 was previously paid
in connection with the filing of Registration Statement No. 333-59165.
Pursuant to Rule 429 under the Securities Act, the combined Prospectus filed
as part of this Registration Statement also relates to the unsold $800,000,000
principal amount of Debt Securities registered under the previously filed
Registration Statement on Form S-3 (File No. 333-59165). This Registration
Statement constitutes Post-Effective Amendment No. 2 to Registrant's
Registration Statement on Form S-3 (File No. 333-59165), 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 this
Registration Statement and Post-Effective Amendment No. 2, this Registration
Statement and Registration Statement No. 333-59165 will together 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
files a further amendment which specifically states that this Registration
Statement will then become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement becomes effective
on such date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information contained in this prospectus is not complete and may be +
+changed. We may not sell these securities until the registration statement +
+filed with the Securities and Exchange Commission is effective. This +
+prospectus is not an offer to sell these securities and we are not soliciting +
+an offer to buy these securities in any state where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 24, 1999
PROSPECTUS
$2,500,000,000
Wachovia Corporation
Debt Securities
-------------
We may offer to sell up to $2.5 billion of our unsecured debt securities (or
the equivalent amount based on the applicable exchange rate at the time of
offering if any securities are denominated in foreign currencies). The
securities may be either Senior Securities or Subordinated Securities. The
securities may 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 euro.
In this prospectus, we describe generally the terms of the securities. We
will describe the specific terms of the securities that we offer in a
supplement to this prospectus at the time of each offering. If any offering
involves underwriters, dealers or agents, we will describe our arrangements
with them in the prospectus supplement that relates to that offering.
The Senior Securities, when issued, will be unsecured and will rank on a
parity with all unsecured and unsubordinated indebtedness of Wachovia. The
Subordinated Securities, when issued, will be unsecured and will be subordinate
to "Senior Indebtedness" of Wachovia and, under certain circumstances, to
"Additional Senior Obligations" of Wachovia, as these terms are defined in this
prospectus. Payment of principal of the Subordinated Securities may be
accelerated only in the case of the bankruptcy of Wachovia. There is no right
of acceleration of the Subordinated Securities 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 Wachovia.
-------------
This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement. The securities will be unsecured
obligations of Wachovia Corporation, will not be savings accounts, deposits or
other obligations of any bank or nonbank subsidiary of Wachovia Corporation and
will not be insured by the Federal Deposit Insurance Corporation, the Bank
Insurance Fund or any other government agency.
-------------
The Securities and Exchange commission and State Securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
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The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About this Prospectus...................................................... 2
Where You Can Find More Information........................................ 3
Wachovia Corporation....................................................... 4
Consolidated Ratio of Earnings to Fixed Charges............................ 5
Use of Proceeds............................................................ 5
Description of Debt Securities............................................. 5
Plan of Distribution....................................................... 15
Experts.................................................................... 16
Legal Matters.............................................................. 16
</TABLE>
----------------
You should rely only on the information incorporated by reference or
contained in this prospectus and any applicable prospectus supplement. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, our securities only in jurisdictions where offers and sales are permitted.
The information contained in this prospectus or the applicable prospectus
supplement is accurate only as of the date on the front of those documents,
regardless of the time of delivery of this prospectus or the applicable
prospectus supplement or of any sale of our securities.
In this prospectus, "we", "us", "our" and "Wachovia" each refers to Wachovia
Corporation.
----------------
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf registration, we may sell the securities described in this
prospectus in one or more offerings up to a total dollar amount of $2.5
billion. We provide information to you about these securities in three
documents that progressively provide more detail:
1. This prospectus, which contains general information that may or may not
apply to each offering of securities.
2. The applicable prospectus supplement, which will contain more specific
information than this prospectus and may also add, update or change
information contained in this prospectus. To the extent information in
the applicable prospectus supplement differs from this prospectus, you
should rely on the different information in the prospectus supplement.
3. The pricing supplement, if applicable, will provide final details about
a specific offering and the terms of the offered securities, including
their price. To the extent information differs from this prospectus or
the prospectus supplement, you should rely on the different information
in the pricing supplement.
You should read both this prospectus and any prospectus supplement or
pricing supplement together with any additional information described under the
heading "Where You Can find More Information" to learn more about Wachovia and
the securities offered.
----------------
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC, Washington, D.C., a registration statement on
Form S-3 under the Securities Act of 1933, as amended, with respect to the
securities that we are offering by this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits and schedules thereto. Certain items are omitted in accordance with
the rules and regulations of the SEC. For further information with respect to
Wachovia and the securities offered hereby, reference is made to the
registration statement and the exhibits and any schedules filed with the
registration statement. Statements contained in this prospectus as to the
contents of any contract or other document referred to are not necessarily
complete and in each instance, if such contract or document is filed as an
exhibit, reference is made to the copy of such contract or other document filed
as an exhibit to the registration statement, each statement being qualified in
all respects by such reference.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file, including
the registration statement, at the SEC's Public Reference room at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's regional
offices located at Seven World Trade Center, Suite 1300, New York, New York
10048 and at Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, IL
60661. For further information on the operation of the Public Reference room,
you may call the SEC at 1-800-SEC-0330. Our SEC filings are also available to
the public over the Internet at the SEC's website at http://www.sec.gov. You
may also inspect our SEC filings at the New York Stock Exchange, the exchange
on which our common stock is listed, at 20 Broad Street, 7th Floor, New York,
New York 10005.
The SEC allows us to "incorporate by reference" the information in documents
that we file with them. This means that we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information in documents
that we file after the date of this prospectus and before the termination of
the offering contemplated by this prospectus will automatically update and
supersede information in this prospectus.
We incorporate by reference our Annual Report on Form 10-K for the year
ended December 31, 1998, our Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, our Current Reports on Form 8-K dated January 14, 1999
and May 13, 1999, and any future filings made with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
until we sell all of the securities offered by this prospectus.
We will provide without charge, upon written or oral request, to each person
to whom this prospectus is delivered, a copy of any or all of the documents
described above which have been or may be incorporated by reference in this
prospectus but not delivered with this prospectus. Such requests should be
directed to Wachovia Corporation, 100 North Main Street, Winston-Salem, North
Carolina 27101, Attention: Secretary. Telephone requests may be directed to
(336) 770-5000.
This prospectus contains or incorporates by reference forward-looking
statements that have been made pursuant to the provisions of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
not historical facts, but rather are based on our current expectations,
estimates and projections about Wachovia's industry, our beliefs and
assumptions. Words such as "anticipates", "expects", "intends", "plans",
"believes", "seeks", "estimates" and similar expressions are intended to
identify forward-looking statements. These statements are not guarantees of
future performance and are subject to certain risks, uncertainties and other
factors, some of which are beyond our control, are difficult to predict and
could cause actual results to differ materially from those expressed or
forecasted in the forward-looking statements. Many of those risks and
uncertainties will be described with particularity in the applicable prospectus
supplement. Risks and uncertainties that may affect future results include, but
are not limited to, changes in the economy, interest rate movements, timely
development by Wachovia of technology enhancements for its products and
operating systems, the ability of Wachovia and its customers and vendors to
address effectively Year 2000
3
<PAGE>
issues, the impact of competitive products, services and pricing, Congressional
legislation and similar matters. We caution you not to place undue reliance on
forward-looking statements, which are subject to influence by the named risk
factors and unanticipated future events and which reflect our management's view
only as of the date of this prospectus or the prospectus supplement containing
such forward-looking statements. We are not obligated to update these
statements or publicly release the results of any revisions to them to reflect
events or circumstances after the date of this prospectus or the applicable
prospectus supplement, or to reflect the occurrence of unanticipated events.
WACHOVIA CORPORATION
Wachovia Corporation, 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, 1999, Wachovia and its consolidated subsidiaries had
total assets of $65.319 billion, deposits of $40.288 billion, and a market
capitalization of $16.473 billion. At March 31, 1999, Wachovia ranked 16th
based on both its consolidated asset size and on its market capitalization
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.
Wachovia's principal banking subsidiaries are Wachovia Bank, National
Association ("Wachovia Bank"), and The First National Bank of Atlanta. Wachovia
Bank is a national banking association headquartered in Winston-Salem, North
Carolina. As of March 31, 1999, Wachovia Bank had total assets of $61.879
billion and deposits of $41.134 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 the United States. Consumer
products and services are provided through:
. a network of 753 retail branches (as of March 31, 1999) and 1,381 ATMs
(as of March 31, 1999) in Georgia, North Carolina, South Carolina,
Virginia and Florida;
. 1-800-WACHOVIA On-Call 24 hour telephone banking;
. automated Phone Access; and
. internet-based investing and banking at www.wachovia.com.
The First National Bank of Atlanta offers credit card services.
Wachovia also has subsidiaries engaged in large corporate and institutional
relationship management and business development, corporate leasing, remittance
processing, insurance, investment advisory and securities brokerage services.
In addition to its domestic banking offices and international banking offices
in London and the Cayman Islands, Wachovia's subsidiaries have offices in
Chicago, New York and selected other cities in the United States, and Hong
Kong, Sao Paulo and Tokyo.
Because Wachovia's growth strategy includes the use of acquisitions,
Wachovia 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 Wachovia's book value and net income per share may
occur in connection with any future transactions.
Wachovia'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.
4
<PAGE>
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following unaudited table presents the consolidated ratio of earnings to
fixed charges of Wachovia 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 Year Ended December 31,
Ended -----------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Including interest on deposits.... 1.70x 1.56x 1.40x 1.52x 1.50x 1.64x
Excluding interest on deposits.... 2.67x 2.33x 1.98x 2.22x 2.15x 2.47x
</TABLE>
USE OF PROCEEDS
We will use the net proceeds from the sale of the securities for general
corporate purposes, principally to fund investments in, or extensions of credit
to, our banking and nonbanking subsidiaries. We also may use such net proceeds
to allow our subsidiaries to repay borrowings incurred by such subsidiaries.
Except as otherwise described in the applicable prospectus supplement, specific
allocations of the proceeds to such purposes will not have been made at the
date of the prospectus supplement, although our management 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 us and our
subsidiaries. In addition to the foregoing, we also may use a portion of the
net proceeds to fund possible acquisitions if suitable opportunities develop in
the future. Based upon anticipated future financing requirements of us and our
subsidiaries, we expect that we will, from time to time, engage in additional
financings of a character and in amounts to be determined.
DESCRIPTION OF DEBT SECURITIES
General
We expect to issue the Senior Securities under an Indenture dated as of
August 15, 1996 (the "Senior Indenture") between us and The Chase Manhattan
Bank, as trustee (the "Senior Trustee"). We expect to issue the Subordinated
Securities under an Indenture dated as of July 15, 1998 (the "Subordinated
Indenture") between us 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. In the discussion
that follows, we summarize particular provisions of the Indentures and include
the relevant section numbers of the applicable Indenture in parentheses. Our
discussion of Indenture provisions is not complete. You should read the
Indentures for a more complete understanding of the provisions we describe.
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 Wachovia. The Senior Indenture
prohibits Wachovia from disposing of, or permitting the issuance of, capital
stock of specified subsidiaries under certain circumstances. See "Restrictive
Covenants Applicable to Senior Securities" beginning on page 8. The
Subordinated Securities will be unsecured and will be subordinated and junior
to all "Senior Indebtedness" and, in certain circumstances relating to the
dissolution, winding-up, liquidation or reorganization of Wachovia, to all
Additional Senior Obligations (each
5
<PAGE>
as defined below under "Subordination of Subordinated Securities"). The
Subordinated Indenture does not prohibit Wachovia from disposing of voting
stock of its subsidiaries, including the stock of any of its banking
subsidiaries. The 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 Wachovia. See "Subordination of Subordinated Securities" on
page 9 and "Events of Default; Limited Rights of Acceleration for Subordinated
Securities" on page 11.
The Indentures do not limit the amount of securities that may be issued and
provide that securities may be issued at various times in one or more series.
(Section 301) Neither the Indentures nor the securities limit the amount of
other indebtedness which Wachovia or any of its subsidiaries may incur. In
addition, the Indentures and the securities do not require Wachovia to
repurchase or redeem or modify the terms of the securities upon a change in
control or other events involving Wachovia that may adversely affect the credit
quality of Wachovia.
Because Wachovia 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 that
subsidiary will be subject to the prior claims of the creditors of that
subsidiary (including, in the case of a subsidiary bank, its depositors),
except to the extent that Wachovia may itself be a creditor with recognized
claims against the subsidiary. Claims on subsidiaries of Wachovia by creditors
other than Wachovia 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" on page 4.
Unless we indicate otherwise 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
Wachovia for such purposes. However, we may, at our option, pay interest by
mailing a check to the address of the person entitled to such interest as it
appears on the Security Register. The transfer of each series of securities
(other than Book-Entry Securities) may be registered at the corporate trust
office of the applicable Trustee. (Sections 301, 305 and 1002) The corporate
trust office of the Senior Trustee and the Subordinated Trustee is located in
New York, New York. Interest on the securities will be paid to the person in
whose name the securities are registered at the close of business on the
Regular Record Date designated for an Interest Payment Date. (Section 307) The
securities will be issued only in fully registered form without coupons and,
unless otherwise indicated in the applicable prospectus supplement, in
denominations of $1,000 or integral multiples of $1,000. (Section 302) We will
not require any service charge for any registration of transfer or exchange of
the securities, but we may require payment of a sum sufficient to cover any tax
or other governmental charge imposed in connection with the transfer or
exchange other than certain exchanges not involving any transfer. (Section 305)
Each prospectus supplement relating to a particular series of debt
securities that we offer (the "Offered Securities") will describe the specific
terms of the Offered Securities. Those specific terms will include some or all
of the following:
. the title of the Offered Securities;
. whether the Offered Securities are Senior Securities or Subordinated
Securities;
. any limit on the aggregate principal amount of the Offered Securities;
. the date or dates on which the Offered Securities will mature;
. 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;
6
<PAGE>
. 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;
. 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 Wachovia;
. the obligation, if any, of Wachovia to redeem or purchase the Offered
Securities pursuant to any sinking fund or analogous provisions or at
the option of a Holder and the period or periods within which, the price
or prices at which and the terms and conditions upon which Offered
Securities will be redeemed or purchased, in whole or in part, pursuant
to such obligation;
. if other than denominations of $1,000 and any integral multiple of
$1,000, the denominations in which the Offered Securities will be
issuable;
. 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;
. any index used to determine the amount of payment of principal of,
premium, if any, and interest on the Offered Securities;
. 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;
. the law which will govern the terms of the Offered Securities;
. information with respect to book-entry procedures, if any; and
. any other terms of the Offered Securities. (Section 301)
Securities may be issued as "Original Issue Discount Securities" which will
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 of such Event of Default. (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, Book-Entry Securities will be issued in aggregate denominations equal to
the aggregate principal amount of securities represented by such Book-Entry
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 applicable Depositary 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
securities to be represented by a Book-Entry Security will be described in the
applicable prospectus supplement. We anticipate 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"). Wachovia or the underwriters or agents will
designate such accounts. 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
7
<PAGE>
("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) 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 such securities registered in their names, will not be
entitled to receive physical delivery of such securities in definitive form,
and will not be considered the owners or holders of such securities under the
applicable Indenture.
Payments of principal of and any premium and interest on securities
registered in the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Book-Entry Security representing such securities. We expect 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 beneficial interests in the
Book-Entry Security, as shown on the records of such Depositary or its nominee.
We also expect 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 we, 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 any Book-Entry Security 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 Wachovia 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, Wachovia has
agreed to appoint a successor depositary. If such a successor is not appointed
by Wachovia within 90 days, Wachovia will issue securities of such series in
definitive registered form in exchange for the Book-Entry Security. In
addition, Wachovia may at any time and in its sole discretion determine that
the securities of any series will no longer be represented by Book-Entry
Securities. In that event, Wachovia will issue securities of such series in
definitive registered form in exchange for such Book-Entry Securities. Further,
if Wachovia 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 case, 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 such owner's name. (Section 305) Securities so issued
in definitive form will be issued in denominations of $1,000 and integral
multiples of $1,000 and will be issued in registered form only, without
coupons.
Restrictive Covenants Applicable to Senior Securities
The Senior Indenture contains a covenant that we will not, directly or
indirectly,
. 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
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convertible into or rights to subscribe to such capital stock, unless,
after giving effect to that transaction and the shares issuable upon
conversion or exercise of rights into that capital stock, Wachovia will
own, directly or indirectly, at least 80% of the outstanding shares of
capital stock of each class of that Principal Subsidiary or Principal
Subsidiary Bank, or
. 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, after obtaining 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" means any Subsidiary or Subsidiary Bank, the consolidated assets
of which constitute 10% or more of the assets of Wachovia 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 Wachovia from creating, assuming,
incurring or suffering to exist any mortgage, pledge, encumbrance or lien or
charge of any kind on the capital stock of a Principal Subsidiary Bank (other
than directors' qualifying shares) or the capital stock of a Principal
Subsidiary, except that the Senior Indenture permits:
. liens for taxes that are not due, are payable without penalty or are
being contested in good faith by appropriate proceedings, and
. 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 Wachovia to make any payment 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
Wachovia and, in certain circumstances relating to the dissolution, winding-up,
liquidation of or reorganization of Wachovia, to all Additional Senior
Obligations. (Article Thirteen of the Subordinated Indenture)
The Subordinated Indenture defines "Senior Indebtedness" as
. all indebtedness of Wachovia for money borrowed, whether now outstanding
or later created, assumed or incurred, other than
. the Subordinated Securities,
. the 7% Subordinated Notes due 1999 of Wachovia in the aggregate
principal amount of $300 million (the "7% Subordinated Notes"),
. any obligation Ranking on a Parity with the Subordinated Securities
(which includes the 6 3/8% Subordinated Notes due 2003 of Wachovia
in the aggregate principal amount of $250 million and the 6 3/8%
Subordinated Notes due 2009 of Wachovia in the aggregate principal
amount of $250 million (collectively, the "6 3/8% Subordinated
Notes"), the 6.80% Subordinated Notes due 2005 of Wachovia in the
aggregate principal amount of $250 million (the "6.80% Subordinated
Notes"), the 6.605% Subordinated Notes due October 1, 2025 of
Wachovia 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"), the 6 1/4%
Subordinated Notes due 2008 of Wachovia in the aggregate principal
amount of $350,000,000 (the "6 1/4% Subordinated Notes"), the 5 5/8%
Subordinated Notes due 2008 of Wachovia in the aggregate principal
amount of $400,000,000 (the "5 5/8% Subordinated Notes") and the
6.150% Subordinated Notes due 2009 of Wachovia in the aggregate
principal amount of $400,000,000 (the "6.150% Subordinated Notes")),
or any obligation Ranking Junior to the Subordinated Securities and
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. any deferrals, renewals or extensions of any such Senior Indebtedness.
The term "indebtedness of the Corporation for money borrowed" means any
obligation of, or any obligation guaranteed by, Wachovia 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.
The Subordinated Indenture defines "Additional Senior Obligations" as all
indebtedness of Wachovia, whether now outstanding or later created, assumed or
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements,
but Additional Senior Obligations do not include:
. any claims in respect of Senior Indebtedness, or
. any obligations
. Ranking Junior to the Subordinated Securities, or
. Ranking on a Parity with the Subordinated Securities.
For purposes of this definition, "claim" has the meaning assigned to it 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 Subordinated Indenture defines "Ranking Junior to the Subordinated
Securities" as any obligation of Wachovia that
. 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 Wachovia as a whole, whether
voluntary or involuntary, and
. is specifically designated as ranking junior to the Subordinated
Securities by express provisions in the instrument creating or
evidencing that obligation.
The Subordinated Indenture defines "Ranking on a Parity with the
Subordinated Securities" as any obligation of Wachovia that
. 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 Wachovia as a whole, whether voluntary or
involuntary, and
. 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 of
the principal of and premium, if any, or interest in respect of the
Subordinated Securities may be made if there is a default in payment with
respect to Senior Indebtedness or an event of default with respect to any
Senior Indebtedness that results in the acceleration of its maturity and that
default or event of default continues.
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 Wachovia as a whole, whether voluntary or
involuntary,
. 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 of the principal of and premium, if
any, or interest on the Subordinated Securities, and
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. if after the procedure described in the bullet point above,
. any cash, property or securities remain available for payment or
distribution in respect of the Subordinated Securities ("Excess
Proceeds"), and
. creditors in respect of Additional Senior Obligations have not
received payment in full of amounts due or to become due or payment
of those amounts has not been duly provided for,
then those Excess Proceeds will first be applied to pay in full all the
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 that payment will 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 this subordination, in the event of
insolvency, Holders of the Subordinated Securities may recover less,
proportionately, 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, the 6.605% Subordinated Notes, the 6 1/4%
Subordinated Notes, the 5 5/8% Subordinated Notes and the 6.150% Subordinated
Notes, which Rank on a Parity with the Subordinated Securities) nor the 7%
Subordinated Notes are subordinate or senior to the other. But the 7%
Subordinated Notes are subordinate to Senior Indebtedness and Additional Senior
Obligations and to all other obligations of Wachovia to its creditors (subject
to certain exceptions specified in the indenture relating to the 7%
Subordinated Notes). 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, the 6.605% Subordinated
Notes, the 6 1/4% Subordinated Notes, the 5 5/8% Subordinated Notes and the
6.150% Subordinated Notes and those applicable to the 7% Subordinated Notes, if
there is 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 Wachovia, the
holders of the Subordinated Securities and the 6 3/8% Subordinated Notes, the
6.80% Subordinated Notes, the 6.605% Subordinated Notes, the 6 1/4%
Subordinated Notes, the 5 5/8% Subordinated Notes and the 6.150% Subordinated
Notes may receive more, proportionately, 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 is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental entity or, with respect to the
Subordinated Securities, whether it is occasioned by the subordination
provisions of the Subordinated Indenture):
. failure, for 30 days, to pay any interest on any security of that series
when due and payable (in the case of Subordinated Securities, whether or
not the subordination provisions of the Subordinated Indenture prohibit
that payment);
. failure to pay principal of or any premium on any security of that
series when due;
. 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 the subordination provisions of the Subordinated Indenture
prohibit that payment);
. failure, for 60 days after written notice, to perform any other
covenants or warranties of Wachovia in the applicable Indenture (other
than a covenant included in the applicable Indenture solely for the
benefit of a series of securities under it other than that series);
. the entry of a decree or order for relief in respect of Wachovia by a
court having jurisdiction in the premises in an involuntary case under
Federal or state bankruptcy laws and the continuance of that decree or
order unstayed and in effect for 60 consecutive days;
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. the commencement by Wachovia of a voluntary case under Federal or state
bankruptcy laws or the consent by Wachovia to the entry of a decree or
order for relief in an involuntary case under such laws;
. 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 more than $50,000,000, of Wachovia, a
Principal Subsidiary or a Principal Subsidiary Bank under the terms of
the instrument(s) under which the indebtedness is issued or secured,
unless the acceleration is annulled, or the indebtedness is discharged,
or there is deposited in trust enough money to discharge the
indebtedness, within 10 days after written notice; and
. 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
Senior Securities of any series at the time Outstanding occurs and continues,
either the Senior Trustee or the Holders of at least 25% in aggregate principal
amount of Outstanding Senior Securities of that series may declare the
principal amount (or, if those Senior Securities are Original Issue Discount
Securities, the portion of the principal amount specified in their terms) of
all Senior Securities of that series 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 the
Outstanding Senior Securities of that series may, under certain circumstances,
rescind and annul that 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 if there is an Event of Default as described in the fifth or
sixth bullet points above (a "Bankruptcy Event of Default") and there is no
right of acceleration of the payment of principal of the Subordinated
Securities of that series upon a default in the payment of principal, premium,
if any, or interest, if any, or in the performance of any covenant or agreement
in the Subordinated Securities or Subordinated Indenture.
If a Bankruptcy Event of Default with respect to Subordinated Securities of
any series at the time Outstanding occurs and continues, 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, the portion of the principal amount
specified in their terms) of all Subordinated Securities of that series due and
payable immediately. At any time after a declaration of acceleration with
respect to Subordinated Securities of any series, but before a judgment or
decree based on that acceleration has been obtained, the Holders of a majority
in aggregate principal amount of the Outstanding Subordinated Securities of
that series may, under certain circumstances, rescind and annul that
acceleration. (Section 502 of the Subordinated Indenture)
General. If there is 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 that principal, premium, if any, or interest, if any, or to obtain
the performance of that covenant or agreement or any other proper remedy.
(Section 503) Under certain circumstances, the applicable Trustee may withhold
notice of a default to the Holders of the securities if the applicable Trustee
in good faith determines that the withholding of that notice is in the best
interest of the Holders, and the applicable Trustee will withhold the notice
for certain defaults for a period of 30 days. (Section 602) You should review
the prospectus supplement relating to any series of Offered Securities that are
Original Issue Discount Securities for particular provisions relating to
acceleration of the Stated Maturity of a portion of the principal amount of
that series of Original Issue Discount Securities if an Event of Default occurs
and continues.
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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 does not have to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
those Holders have offered to the applicable Trustee reasonable security or
indemnity. (Section 603) Subject to the above sentence 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 Holders of any securities of any series may institute any proceeding with
respect to the applicable Indenture, or for the appointment of a receiver or
trustee or for any remedy relating to that appointment,
. unless those Holders have already given to the applicable Trustee
written notice of a continuing Event of Default,
. unless the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made written request, and
offered reasonable indemnity, to the applicable Trustee to institute
such a proceeding as trustee,
. if the Trustee has received from the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series a
direction inconsistent with the written request, and
. unless the Trustee has failed to institute the proceeding within 60
days. (Section 507)
The above 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 the security on or after the respective due dates described in the
security. (Section 508)
We are required to furnish to each Trustee annually a statement as to the
performance by us of certain of our 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
Wachovia and the applicable Trustee may modify and amend the Indentures with
the consent of the Holders of at least 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, but no such modification or
amendment may, without the consent of the Holders of each Outstanding Security
of the series affected by the modification or amendment
. change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any security of that series;
. 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 maturity);
. change the place or currency of payment of principal of or the premium,
if any, or interest on any security of that series;
. impair the right to institute suit for the enforcement of any payment on
any security of such series on or after its Stated Maturity (or, in the
case of redemption, on or after the Redemption Date);
. in the case of the Subordinated Securities, modify the subordination
provisions in a manner adverse to the Holders of the Subordinated
Securities of that series; or
. 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.
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(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, waive compliance by Wachovia 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, waive any past default under the applicable Indenture,
except a default in the payment of principal, premium, if any, or interest and
regarding certain covenants. (Section 513)
Consolidation, Merger and Sale of Assets
Under the Indentures, Wachovia 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
. any successor or purchaser is a corporation organized under the laws of
any domestic jurisdiction;
. any such successor or purchaser expressly assumes Wachovia's obligations
on the securities and under the Indentures;
. immediately after the transaction, no Event of Default, and no event
that, after notice or lapse of time or both, would become an Event of
Default, occurs and continues; and
. certain other conditions are met. (Section 801)
Assumption by Subsidiary
A Subsidiary may assume Wachovia's obligations under the Senior Indenture or
the Subordinated Indenture (including Wachovia's obligation to pay principal of
and premium, if any, and interest on the securities, but excluding Wachovia's
obligation to comply with certain covenants) provided that:
. the Subsidiary expressly assumes Wachovia's obligations under the
applicable Indenture;
. Wachovia guarantees the Subsidiary's obligations;
. the Subsidiary agrees to indemnify each Holder against certain taxes and
expenses relating to, or incurred directly in connection with, the
assumption of obligations;
. 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, has occurred and continues;
. certain Opinions of Counsel and Officers' Certificates are delivered to
the applicable Trustee; and
. certain other obligations are met. (Section 803)
Trustee
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 Wachovia 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 Wachovia 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
Wachovia under certain circumstances.
The Subordinated Trustee. The Chase Manhattan Bank also serves as
Subordinated Trustee under the Subordinated Indenture and in that capacity
serves as trustee with respect to the 6 1/4% Subordinated Notes, the 5 5/8%
Subordinated Notes, the 6.150% Subordinated Notes and any future issuances of
Subordinated Securities. An affiliate of the Subordinated Trustee, Chase
Manhattan Trust Company, National Association, serves as trustee under the
indentures pursuant to which the 7% Subordinated Notes, the 6 3/8% Subordinated
Notes, the 6.80% Subordinated Notes and the 6.605% Subordinated Notes are
outstanding. The Subordinated Indenture provides for the indemnification of the
Subordinated Trustee by Wachovia under certain circumstances.
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PLAN OF DISTRIBUTION
We may sell the securities from time to time:
. directly to purchasers,
. through agents,
. through underwriters or dealers or
. through a combination of these methods.
General
Underwriters, dealers, agents and remarketing firms that participate in the
distribution of the Offered Securities may be "underwriters" as defined in the
Securities Act of 1933, as amended. Any discounts or commissions they receive
from us and any profits they receive on the resale of the Offered Securities
may be treated as underwriting discounts and commissions under the Securities
Act of 1933, as amended. We will identify any underwriters, agents or dealers
and describe their commissions, fees or discounts in the applicable prospectus
supplement or pricing supplement.
Agents
We may designate agents to sell the securities. The agents will agree to use
their best efforts to solicit purchases for the period of their appointment.
Underwriters
If underwriters are used in a sale, they will acquire the Offered Securities
for their own account. The underwriters may resell the securities in one or
more transactions, including negotiated transactions. These sales will be made
at a fixed public offering price or at varying prices determined at the time of
the sale. We may offer the securities to the public through an underwriting
syndicate or through a single underwriter.
Unless the applicable prospectus supplement or pricing supplement states
otherwise, the obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions contained in an underwriting
agreement that Wachovia and the underwriters will enter into. The underwriters
will be obligated to purchase all of the securities of the series offered if
any of the securities are purchased, unless the applicable prospectus
supplement or pricing supplement says otherwise. Any initial public offering
price and any discounts or concessions allowed, re-allowed or paid to dealers
may be changed from time to time.
Dealers
We may sell securities to one or more remarketing firms, acting as
principals for their own accounts or as agents for Wachovia, who will remarket
the securities upon purchasing them in accordance with a redemption or
repayment pursuant to the terms of the securities.
Direct Sales
We may choose to sell the Offered Securities directly. In this case, no
underwriters or agents would be involved.
Institutional Purchasers
We may authorize agents, dealers or underwriters to solicit certain
institutional investors to purchase Offered Securities on a delayed delivery
basis pursuant to delayed delivery contracts providing for payment and delivery
on a specified future date. The applicable prospectus supplement or pricing
supplement will provide the details of any such arrangement, including the
offering price and commissions payable on the solicitations.
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We will enter into such delayed delivery contracts only with institutional
purchasers that we approve. Such institutions may include commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions.
Indemnification
We may have agreements with agents, underwriters, dealers and remarketing
firms to indemnify them against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. Agents, underwriters,
dealers and remarketing firms, and their affiliates, may engage in transactions
with, or perform services for, us in the ordinary course of business. This
includes commercial banking and investment banking transactions.
Market Making, Stabilization and Other Transactions
Each series of securities will be a new issue and will have no established
trading market. We may elect to list any series of securities on an exchange.
Any underwriters that we use in the sale of Offered Securities may make a
market in such securities, but may discontinue such market making at any time
without notice. Therefore, we cannot assure that the securities will have a
liquid trading market.
Any underwriter may engage in stabilizing transactions, syndicate covering
transactions and penalty bids in accordance with Rule 104 under the Securities
Exchange Act of 1934, as amended. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed
a specified maximum. Syndicate covering transactions involve purchases of the
securities in the open market after the distribution has been completed in
order to cover syndicate short positions. Penalty bids permit the underwriters
to reclaim a selling concession from a syndicate member when the securities
originally sold by that syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Such stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would otherwise be in the absence of such
transactions. The underwriters may, if they begin these transactions, end them
at any time.
NASD Matters
The underwriting and agency arrangements for any offering of the Offered
Securities in which Wachovia Securities, Inc. will participate will comply with
the requirements of Rule 2720 of the National Association of Securities
Dealers, Inc. (the "NASD") regarding an NASD member firm's participating in
distributing its affiliate's securities. NASD members participating in such an
offering will not confirm sales of the Offered Securities to discretionary
accounts.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1998, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
LEGAL MATTERS
William M. Watson, Jr., Esq., Senior Vice President, Counsel and Secretary
of Wachovia, will issue an opinion regarding the validity of the Offered
Securities for Wachovia. Simpson Thacher & Bartlett, New York, New York will
issue an opinion as to certain legal matters for any underwriters or agents. As
to matters of New York law, Mr. Watson will rely on the opinion of Simpson
Thacher & Bartlett. From time to time, Simpson Thacher & Bartlett may provide
legal services to Wachovia and its subsidiaries.
16
<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>
<S> <C>
Securities and Exchange Commission registration fee................ $472,600
NASD filing fee.................................................... $ 30,500
Blue Sky fees and expenses......................................... $ 3,000
Accounting services................................................ $ 20,000
Printing and engraving............................................. $ 20,000
Fees of indenture trustees......................................... $ 40,000
Rating agency fees................................................. $ 15,000
Miscellaneous...................................................... $ 48,900
--------
Total............................................................ $650,000
========
</TABLE>
Item 15. Indemnification of Officers and Directors.
As permitted by the North Carolina Business Corporation Act (the "NCBCA"),
Wachovia's Articles of Incorporation provide that no director of Wachovia 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
Wachovia, (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
Wachovia, (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 55850, 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 Wachovia, 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 Wachovia, against
reasonable expenses incurred by him in connection with the proceeding.
A corporation may not indemnify under the NCBCA in connection with any
proceeding by or in the right of a corporation in which the director was
adjudged liable to the corporation, or with any other proceeding charging
improper personal benefit to him, whether or not in connection with his
official capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him. Where a proceeding is by or in the
right of a corporation, indemnification of a director is limited to reasonable
expenses if the proceeding is concluded without a final adjudication on the
issue of liability.
The NCBCA provides for an advance for expenses incurred by a director in
defending a proceeding. The expenses may be paid by a corporation in advance of
the final disposition of such proceeding as authorized by the board of
directors in specific cases or as authorized or required under any provision in
the articles of incorporation or bylaws or by any applicable resolution or
contract upon receipt of an undertaking by or on behalf of the director to
repay such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the corporation against such expenses.
17
<PAGE>
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
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
18
<PAGE>
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.
19
<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 May 24,
1999.
Wachovia Corporation
/s/ L.M. Baker, Jr.
By: _________________________________
L.M. Baker, Jr.
Chairman 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 May 24, 1999.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C> <C>
</TABLE>
<TABLE>
<S> <C> <C>
L.M. Baker, Jr.* Chairman, Chief Executive
______________________________________ Officer and Director
L.M. Baker, Jr. (Principal Executive
Officer)
John G. Medlin, Jr.* Chairman Emeritus
______________________________________
John G. Medlin, Jr.
James S. Balloun* Director
______________________________________
James S. Balloun
Peter C. Browning* Director
______________________________________
Peter C. Browning
John T. Casteen III* Director
______________________________________
John T. Casteen III
John L. Clendenin* Director
______________________________________
John L. Clendenin
Thomas K. Hearn, Jr.* Director
______________________________________
Thomas K. Hearn, Jr.
George W. Henderson, III* Director
______________________________________
George W. Henderson, III
W. Hayne Hipp* Director
______________________________________
W. Hayne Hipp
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
Robert A. Ingram* Director
______________________________________
Robert A. Ingram
George R. Lewis* Director
______________________________________
George R. Lewis
Elizabeth Valk Long* Director
______________________________________
Elizabeth Valk Long
Lloyd U. Noland, III* Director
______________________________________
Lloyd U. Noland, III
Sherwood H. Smith, Jr.* Director
______________________________________
Sherwood H. Smith, Jr.
John C. Whitaker, Jr.* Director
______________________________________
John C. Whitaker, Jr.
Robert S. McCoy, Jr.* Vice Chairman and
______________________________________ Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial
Officer)
Donald K. Truslow* Senior Executive Vice
______________________________________ President, Comptroller
Donald K. Truslow and Treasurer
(Principal Accounting
Officer)
/s/ William M. Watson, Jr.
*By:_________________________________
William M. Watson, Jr.
Attorney-in-Fact
</TABLE>
21
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No.
-------
<C> <S>
(1) -- Form of Underwriting Agreement.
(4)(a) -- Indenture dated as of August 15, 1996 between Wachovia Corporation
and The Chase Manhattan Bank, as Trustee, relating to the Senior
Securities (incorporated by reference to Exhibit 4(a) to Post-
Effective Amendment No. 1 to Wachovia Corporation's Registration
Statement on Form S-3 (File No. 333-6319)).
(4)(b) -- Indenture dated as of July 15, 1998 between Wachovia Corporation
and The Chase Manhattan Bank, as Trustee, relating to the
Subordinated Securities.
(5)(a) -- Opinion of William M. Watson, Jr., Senior Vice President, Counsel
and Secretary of Wachovia 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 LLP.
(23)(c) -- Consent of William M. Watson, Jr., Senior Vice President, Counsel
and Secretary of Wachovia Corporation (included in Exhibit 5(a)).
(23)(d) -- Consent of Simpson Thacher & Bartlett (included in Exhibit 5(b)).
(24)(a) -- Power of Attorney of Directors of Wachovia Corporation.
(24)(b) -- Power of Attorney of Officers of Wachovia Corporation.
(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.
</TABLE>
<PAGE>
EXHIBIT 1
WACHOVIA CORPORATION
$_________
____% _________ Notes due ________,____
UNDERWRITING AGREEMENT
----------------------
________,____
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
[OTHER NAMES]
as the Several Underwriters
c/o Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Wachovia Corporation, a North Carolina corporation (the "Company"),
confirms its agreement (the "Agreement") with Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $_________
aggregate principal amount of ____% _______ Notes due _______,____ (the
"Notes").
The Underwriters, who may be members of an underwriting syndicate
managed by Merrill Lynch, have each agreed to the provisions contained in the
Merrill Lynch Agreement Among Underwriters for Global Bonds dated as of _______,
____.
<PAGE>
2
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered. The Notes will be issued pursuant to
an indenture, dated as of _______, ____ (the "Indenture"), between the Company
and The Chase Manhattan Bank, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-59165) (the "First
Registration Statement"), Post-Effective Amendment No. 1 to the First
Registration Statement and a Registration Statement on Form S-3 (No. 333-_____)
(the "Second Registration Statement"), which constitutes Post-Effective
Amendment No. 2 to the First Registration Statement, for the registration of
debt securities (including the Notes) under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statements, as
amended, have been declared effective by the Commission, and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statements, as amended, including the information, if
any, deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), are collectively referred to herein as
the "Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Notes, in the form first furnished to
the Underwriters by the Company for use in connection with the offering of the
Notes, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities and Exchange Act of 1934, as amended
(the "1934 Act"), prior to the execution of this Agreement. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of underwriting
agreement. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
<PAGE>
3
Section 1. Representations and Warranties. The Company represents
------------------------------
and warrants to each Underwriter as of the date hereof and as of the Closing
Time (as hereinafter defined) as follows:
(i) At the time the Registration Statement became effective and
as of the date hereof, the Registration Statement complied in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of its issue date and at Closing Time, does
not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, the Company makes no representations or warranties as to
(A) that part of the Registration Statement which constitutes the Statement
of Eligibility and Qualification (Form T-1) under the 1939 Act of the
Trustee or (B) the information contained in the statements set forth under
the heading "Underwriting" in the Prospectus Supplement. Notwithstanding
the foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriters expressly for use
in the Registration Statement or the Prospectus.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations").
(iii) To the best knowledge of the Company, Ernst & Young,
LLP, the accountants who certified the financial statements and supporting
schedules included in or incorporated by reference into the Registration
Statement, are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Company is not, and upon the issuance of the Notes as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(vi) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance of the Notes, except such
<PAGE>
4
as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws and the qualification of the Indenture under the 1939 Act.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business.
(viii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
North Carolina with corporate power to own, lease and operate its
properties and to conduct its business as described in the Prospectus, to
enter into and perform its obligations under this Agreement, the Indenture
and the Notes; the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character or location of its
properties or the nature or the conduct of its business requires such
qualification, except for any failures to be so qualified or in good
standing which, taken as a whole, are not material to the Company and its
subsidiaries, considered as one enterprise.
(ix) Wachovia Bank, National Association ("Wachovia Bank") is a
national banking association duly organized and validly existing under the
laws of the United States, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its business
as such and to own, lease and operate its properties and is duly authorized
to transact business and is in good standing in each jurisdiction in which
it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that the
failure to so qualify or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(x) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
the Indenture conforms to all statements relating thereto contained in the
Prospectus; and the Indenture has been duly qualified under the 1939 Act.
(xi) The Notes have been duly authorized by the Company and
have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment therefor
as described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform to all statements relating
thereto in the Prospectus.
<PAGE>
5
(xii) The execution, delivery and performance of this
Agreement, the Indenture and the Notes and the consummation of the
transactions contemplated herein and therein and compliance by the Company
with its obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or Wachovia Bank pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or Wachovia Bank is a party or by which it or either of them may be
bound, or to which any of the property or assets of the Company or Wachovia
Bank is subject (except for conflicts, breaches and defaults which would
not, individually or in the aggregate, be materially adverse to the Company
and its subsidiaries taken as a whole or materially adverse to the
transactions contemplated by this Agreement), nor will such action result
in any material violation of the provisions of the articles of
incorporation or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(xiii) There is not pending or threatened any action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein).
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
principal amount of the Notes set forth in Schedule A hereto opposite the name
of such Underwriter at a purchase price of _____% of the principal amount of the
Notes, plus any additional number of Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price, and delivery of certificates, for
the Notes shall be made at the office of Simpson Thacher & Bartlett, or at such
other place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. New York time on the third business day after the date hereof, or
such other time not later than ten business days after such date as shall be
agreed upon by the Underwriters and the Company (such time and date of payment
and delivery being herein called "Closing Time"). Payment shall be made to the
Company by wire transfer or certified or official bank check of same day funds
payable to the order of the Company, against delivery to the Underwriters of
certificates for the Notes to be purchased by it (unless such Notes are issuable
only in the form of one or more global securities registered in the name of a
depository or a nominee of a depository, in which event the Underwriters'
interest in such global certificate shall be noted in a manner satisfactory to
the
<PAGE>
6
Underwriters and their counsel). Unless otherwise agreed, certificates for the
Notes shall be deposited with a custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Section 3. Covenants of the Company. The Company covenants with
------------------------
each Underwriter as follows:
(a) The Company will notify the Underwriters promptly, and confirm the
notice in writing, (i) of any amendment to the Registration Statement (including
any post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its intention to
file or prepare (i) any amendment to the Registration Statement (including any
post-effective amendment), (ii) any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Notes), or (iii) any
document that would as a result thereof be incorporated by reference in the
Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any such amendment, supplement or other
document within a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment, supplement or
other document or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object. Subject to the foregoing, the
Company will file the Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day following the
execution and delivery of this Agreement.
(c) The Company will deliver to the Underwriters as many signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) as the
Underwriters may reasonably request and will also deliver to the Underwriters a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits).
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as amended or supplemented) as the
Underwriters may reasonably request for the purposes contemplated by the 1933
Act or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Notes, any event shall occur as a
result of which the Prospectus as then amended or supplemented will include any
untrue statement of a material fact
<PAGE>
7
or omit to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading or if it
shall be necessary to amend or supplement the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company will,
subject to paragraph (b) above, promptly prepare and file with the Commission
such amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and the Company will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Notes for offering and sale under the applicable securities laws
of such states and the other jurisdictions of the United States as the
Underwriters may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified.
(g) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (which need not
be audited) of the Company and its subsidiaries, covering an applicable period
beginning not later than the first day of the Company's fiscal quarter next
following the "Effective Date" (as defined in Rule 158(c) under the Act) of the
Registration Statement, which will satisfy the provisions of Section 11(a) of
the 1933 Act.
(h) Until the business day following the Closing Time, the Company
will not, without the consent of the Underwriters, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the 1933
Act.
(i) The Company will make application for listing of the Notes on the
Luxembourg Stock Exchange and will endeavor to meet all other requirements of
the Luxembourg Stock Exchange necessary to effect such listing.
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including:
(i) the printing and filing of the Registration Statement, with the Commission
and with the Luxembourg Stock Exchange, as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Notes, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Notes under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the fees and disbursements of Simpson Thacher & Bartlett, counsel for
the Underwriters, in connection therewith and in connection with the preparation
of any blue sky survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc., if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture; (ix) any fees payable in connection
with the rating of
<PAGE>
8
the Notes; (x) the cost and charges of any transfer agent or registrar and (xi)
the cost of qualifying the Notes with DTC.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 8 hereof, the Company shall reimburse the
Underwriters for all of its reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of Simpson Thacher & Bartlett, counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
---------------------------------------
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained or in
certificates of officers of the Company, to the performance by the Company of
their obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the 1933 Regulations and in accordance
with Section 3(b) and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of either
Kenneth W. McAllister, General Counsel of the Company, or William M. Watson,
Jr., Senior Vice President, Counsel and Secretary of the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of North Carolina,
has the corporate power and authority to own its properties, conduct its
business as described in the Prospectus and perform its obligations under
this Agreement, and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended.
(ii) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise.
(iii) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus and all of
the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
<PAGE>
9
(iv) Wachovia Bank is a national banking association duly
organized and validly existing under the laws of the United States,
continues to hold a valid certificate to do business as such and has full
power and authority to conduct its business as such.
(v) Wachovia Bank has the authority under the laws of the
United States to own, lease and operate its properties and to conduct its
business and is duly authorized to transact business and is in good
standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be in
good standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise; and all of the outstanding
shares of capital stock of Wachovia Bank have been duly authorized and
validly issued and are fully paid and non-assessable (except as otherwise
provided in 12 U.S.C. Section 55), and all of such shares are owned of
record and, to the best knowledge of such counsel, beneficially by the
Company, directly or through one or more subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind known to such counsel, and none of such shares was issued in
violation of the preemptive rights of any stockholder of Wachovia Bank.
(vi) To the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
Wachovia Bank, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is
no franchise, contract, or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(vii) The Registration Statement has become effective under
the 1933 Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened; the
Registration Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and other financial
and statistical information contained therein or incorporated by reference
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations.
(viii) The Underwriting Agreement and the Indenture have been
duly authorized, executed and delivered by the Company, and the Indenture
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, and has been duly
qualified under the 1939 Act.
(ix) The Notes have been duly authorized for issuance by the
Company; and the Notes, when executed, authenticated and delivered in the
manner provided for in the Indenture and paid for in accordance with this
Agreement, will constitute valid and binding
<PAGE>
10
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms.
(x) The Notes conform in all material respects to the
description thereof contained in the Prospectus.
(xi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein, except as such have been
obtained under the 1933 Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution
of the Notes by the Underwriters and such other approvals (specified in
such opinion) as have been obtained.
(xii) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate and fairly discuss in all material
respects the information required to be shown.
(xiii) To the best knowledge of such counsel, no default
exists in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Prospectus.
(xiv) The statements in the Prospectus under the caption
"Description of Securities" and "Description of Notes", to the extent that
such statements constitute matters of law or legal conclusions, have been
reviewed by such counsel, or attorneys in such counsel's office working
under such counsel's direction, and are accurate and fairly present the
information disclosed therein in all material respects.
(xv) The execution and delivery of each of this Agreement and
the Indenture by the Company, the issuance and delivery of the Notes and
the consummation by the Company of the transactions contemplated in this
Agreement and in the Prospectus and compliance by the Company with the
terms of each of this Agreement, the Indenture and the Notes do not and
will not result in any violation of the charter or by-laws of the Company
or Wachovia Bank, and do not and will not conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or Wachovia Bank
under (A) any indenture, mortgage or loan agreement, or any other agreement
or instrument known to such counsel, to which the Company or Wachovia Bank
is a party or by which it may be bound or to which any of its properties
may be subject, (B) any existing applicable law, rule or regulation (other
than the securities or blue sky laws of the various states, as to which
such counsel need express no opinion), or (C) any judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or Wachovia Bank or any of
its properties.
<PAGE>
11
(xvi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of the
dates they were filed with the Commission and as of the date of this
Agreement, appear on their face to have been appropriately responsive in
all material respects to the requirements of the 1934 Act and the rules and
regulations promulgated thereunder.
(xvii) Nothing has come to such counsel's attention which
would lead such counsel to believe (A) that the Registration Statement
(except for the financial statements and related schedules included therein
or omitted therefrom, as to which such counsel need express no opinion), on
the original effective date of the Registration Statement or on the date of
the Underwriting Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) that the
Prospectus (except for the financial statements and related schedules
included therein or omitted therefrom, as to which such counsel need
express no opinion), at the time the Prospectus was issued or as of the
Closing Time, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or (C) that the documents incorporated by reference
in the Prospectus (except for the financial statements and related
schedules included therein or omitted therefrom, as to which such counsel
need express no opinion, and except to the extent that any statement
therein is modified or superseded in the Prospectus), as of the dates they
were filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(xviii) The Company is not, and upon the issuance and sale of
the Notes as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus, will not be, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing believed to
be reliable and who are satisfactory to counsel for the Underwriters; and (B) as
to matters of fact, to the extent deemed proper, on the representations and
warranties of the Company contained herein, the Indenture or on certificates of
responsible officers of the Company and its subsidiaries and public officials.
(2) The favorable opinion, dated as of Closing Time, of Simpson
Thacher & Bartlett, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the legal existence of the
Company, the Indenture, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Underwriters may require.
<PAGE>
12
In giving its opinion, Simpson Thacher & Bartlett may rely as to
certain matters of North Carolina law upon the opinion of either Kenneth W.
McAllister, General Counsel of the Company, or William M. Watson, Jr., Senior
Vice President, Counsel and Secretary of the Company, which shall be delivered
in accordance with Section 5(b)(1) hereto.
(3) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of a Senior Vice President of the Company and of the
chief financial or chief accounting officer of the Company, and dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(4) At the Closing Time, Ernst & Young LLP shall have furnished to the
Underwriters a letter or letters (which may refer to letters previously
delivered to the Underwriters), dated as of the Closing Time, in form and
substance satisfactory to the Underwriters, confirming that the response, if
any, to Item 10 of the Registration Statement is correct insofar as it relates
to them and stating in effect that:
(i) They are independent accountants within the meaning of the
1933 Act and the 1934 Act and the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) In their opinion, the consolidated financial statements of
the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with respect to
registration statements on Form S-3 and the 1934 Act and the 1934 Act
Regulations.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(A) Reading the minutes of the meetings of the shareholders, the board
of directors, executive committee and audit committee of the Company and the
boards of directors and executive committees of its subsidiaries as set forth in
the minute books through a specified date not more than five business days prior
to the date of delivery of such letter;
(B) Performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the Company and its
consolidated subsidiaries included or incorporated by
<PAGE>
13
reference in the Registration Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from the date of the latest
balance sheet included or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest available interim financial
data; and
(C) Making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding the specific items
for which representations are requested below; nothing has come to their
attention as a result of the foregoing procedures that caused them to believe
that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, in or incorporated in the Registration Statement
and the Prospectus, there were any changes, at a specified date not
more than 3 business days prior to the date of the letter, in the
long-term debt (including capital lease obligations) of the Company
and its subsidiaries or capital stock of the Company (other than
issuances of capital stock upon exercise of options and stock
appreciation plans which were outstanding on the date of the latest
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus) or decreases in the
shareholders' equity of the Company as compared with the amounts shown
on the most recent consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in net interest income,
net interest income after provision for loan losses or in income
before income taxes, or in the total or per-share amount of net income
of the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Underwriters.
(iv) The letter shall also state that Ernst & Young LLP has
carried out certain other specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in
<PAGE>
14
the Registration Statement and Prospectus and which are specified by the
Underwriters and agreed to by Ernst & Young LLP, and has found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Ernst & Young LLP
shall have furnished to the Underwriters a letter or letters, dated the date of
this Agreement, in form and substance satisfactory to the Underwriters, to the
effect set forth in this subsection 4.
(5) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company, in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Underwriters and Simpson Thacher &
Bartlett, counsel for the Underwriters.
(6) At Closing Time, the Notes are rated A+ by Standard & Poor's
Rating Services and A1 by Moody's Investor Service and there shall not have
occurred any decrease in the ratings of any of the securities of the Company or
the Notes by any nationally recognized statistical rating organization, and no
such organization shall have publicly announced that it has under surveillance
or review its rating of any of the Company's securities or any of the Notes.
(c) At or before Closing Time the Notes shall have been accepted for
listing on the Luxembourg Stock Exchange and the Company shall have provided
evidence satisfactory to the Underwriters of such listing.
(d) At Closing Time there shall not have been a change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in the view of the Underwriters be likely to
prejudice materially the success of the offering and distribution of the Notes
or dealings in the Notes in the secondary market.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 7, and 8 shall survive any such termination and will remain in full
force and effect.
Section 6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each of its partners, officers, directors, and employees and each person, if
any, who controls any Underwriter within the meaning of the 1933 Act or the 1934
Act against any losses, claims, damages or liabilities, and any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Notes), which arises
out
<PAGE>
15
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Registration Statement, or any amendment or
supplement thereto, (B) the Prospectus and any amendment or supplement thereto,
or (C) any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the Notes
under the securities or blue sky laws thereof (each, an "Application") or (ii)
the omission or alleged omission to state in the Registration Statement, or any
amendment or supplement thereto, the Prospectus or any amendment or supplement
thereto, or any Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse as
incurred each Underwriter and each such controlling person for any legal and
other expenses incurred in investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable to any Underwriter in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, any untrue
statement or alleged untrue statement made in the Prospectus, including any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Underwriter specifically for inclusion and actually included therein; and
provided further that, as to any Prospectus that has been amended or
supplemented as provided herein, this indemnity agreement shall not inure to the
benefit of any Underwriter on account of any loss, claim, damage, liability or
action arising out of the sale of Notes to any person by such Underwriter if (A)
such Underwriter failed to send or give a copy of the final Prospectus as so
amended or supplemented to that person at or prior to the confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the 1933 Act, and (B) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in any
preliminary Prospectus was corrected in an amendment or supplement thereto (but
only if the sale to such person occurred after the Company provided such
Underwriter and the Underwriter received copies of such amendment or supplement
for distribution). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and each of the Company's directors, each of its
officers and each person, if any, who controls the Company within the meaning of
the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by such Underwriter and
specifically included in the Prospectus. This indemnity shall be in addition to
any liability which such Underwriter may otherwise have. The Company
acknowledges that the statements set forth under the heading "Underwriting" in
the Prospectus Supplement constitute the only information furnished in writing
by the several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 6, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party or
parties will not relieve it or them from any liability which it or they may
<PAGE>
16
have to any indemnified party otherwise than under subsection (a) or (b) of this
Section 6 or to the extent that the indemnifying party was not adversely
affected by such omission. In case any such action is brought against an
indemnified party and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Underwriters in the case of paragraph (a) of this Section 6,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions), or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party, which will not be unreasonably
withheld, unless such indemnified party waived its rights under this Section 6
in writing in which case the indemnified party may effect such a settlement
without such consent.
(d) If the indemnification provided for in the preceding paragraphs of
this Section 6 is unavailable or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then the
Company or the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the total
discounts and/or commissions received by the Underwriters bears to the sum of
such discounts and/or commissions and the purchase price of the Notes specified
on the cover page of the Prospectus and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter be
responsible for any amount in excess of the total discounts and/or commissions
received by it with respect to the Notes purchased by such Underwriter under
this Agreement and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be
<PAGE>
17
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the 1933 Act or the 1934 Exchange Act, each officer
of the Company and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
Section 7. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company and shall survive delivery of the
Notes to the Underwriters.
Section 8. Termination of Agreement.
------------------------
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Notes or to enforce contracts for the
sale of the Notes, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the applicable exchange, or
if trading generally on the New York Stock Exchange, the American Stock Exchange
or on the NASDAQ National Market has been suspended, limited or restricted or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges or such system or by
order of the Commission, the NASD or any governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New York or North
Carolina authorities, or (v) if there has been any decrease in the ratings of
any of the securities of the Company or of the Notes by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or if any such organization shall have publicly announced
that it has under surveillance or review its rating of any of the Company's
securities or any of the Notes.
<PAGE>
18
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and except that Sections 1, 6, and 7 shall survive
any such termination and will remain in full force and effect.
Section 9. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at Closing Time to purchase the Notes that
it or they are obligated to purchase under this Agreement (the "Defaulted
Notes"), the lead Underwriter shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the lead Underwriter shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10% of the Notes,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Notes exceeds 10% of the Notes, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the lead Underwriter shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
Section 10. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York 10281-
1209, attention of Syndicate Department; notices to the Company shall be
directed to it at Wachovia Corporation, 100 North Main Street, Winston-Salem,
North Carolina 27101, attention of William M. Watson, Jr., Esq.
Section 11. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers, directors and trustees referred to in Section 6 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company
<PAGE>
19
and their respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 12. Governing Law and Time. This Agreement shall be
----------------------
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
Section 13. Counterparts. This Agreement may be executed by any one
------------
or more of the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
<PAGE>
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
WACHOVIA CORPORATION
By:_______________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:______________________________________________
Authorized Signatory
For itself and the other Underwriters
named in Schedule A hereto.
<PAGE>
SCHEDULE A
Principal
Name of Underwriter Amount
- -------------------- ------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ......................... $
..................................................
..................................................
..................................................
..................................................
..................................................
Total .................................... $
<PAGE>
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>
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
Board 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
- -----------------
NOTE: This table of contents shall not, for any purposes, be deemed to be a
part of the Indenture.
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<PAGE>
Page
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Predecessor Security..................................... 5
Primary Federal Regulator................................ 5
Ranking Junior to the Securities......................... 5
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
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<PAGE>
Page
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Section 304. Temporary Securities..................................... 21
Section 305. Registration, Registration of Transfer and Exchange...... 21
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
-iii-
<PAGE>
Page
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Section 606. Money Held in Trust...................................... 35
Section 607. Compensation and Reimbursement........................... 36
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
Section 1003. Money for Securities Payments to be Held in Trust........ 48
Section 1004. Corporate Existence...................................... 49
-iv-
<PAGE>
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
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
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<PAGE>
Page
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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
-vi-
<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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
<PAGE>
2
"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.
"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.
<PAGE>
3
"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.
"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.
<PAGE>
4
"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 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
<PAGE>
5
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 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.
<PAGE>
6
"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 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
<PAGE>
7
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:
(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.
<PAGE>
8
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 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,
<PAGE>
9
(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 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.
<PAGE>
10
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 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.
<PAGE>
11
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>
12
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, 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.]
<PAGE>
13
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>
14
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 Price Redemption Price
------- -------
Year 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>
15
Redemption Price Redemption Price
For Redemption Through For Redemption Otherwise
Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ------ ----------------------- -------------------------
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 behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided.
<PAGE>
16
[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 consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
<PAGE>
17
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."
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
<PAGE>
18
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;
(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
<PAGE>
19
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.
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
<PAGE>
20
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 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.
<PAGE>
21
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.
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
<PAGE>
22
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.
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
<PAGE>
23
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 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
<PAGE>
24
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted 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
<PAGE>
25
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.
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.
<PAGE>
26
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 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.
<PAGE>
27
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 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
<PAGE>
28
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.
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
<PAGE>
29
(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,
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
<PAGE>
30
(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;
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.
<PAGE>
31
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and 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.
<PAGE>
32
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
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.
<PAGE>
33
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 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.
<PAGE>
34
(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.
(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.
<PAGE>
35
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(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
<PAGE>
36
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
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.
<PAGE>
37
The provision of this Section 607 shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee, any Paying
Agent or any Authenticating Agent, as the case may be.
Section 608 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. 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
<PAGE>
38
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all 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 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
<PAGE>
39
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
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
<PAGE>
40
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 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
<PAGE>
41
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.
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
<PAGE>
42
(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.
(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
<PAGE>
43
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.
---------------------------------
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
<PAGE>
44
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) 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
<PAGE>
45
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
(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
<PAGE>
46
(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.
-----------------------------------------------
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
<PAGE>
47
(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.
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
<PAGE>
48
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
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.
<PAGE>
49
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
(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
<PAGE>
50
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
(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
<PAGE>
51
Securities at the election of the Company prior to the expiration of any
restriction on redemptions provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of 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.
<PAGE>
52
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.
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.
<PAGE>
53
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided, that such Securities have not been previously so credited.
---------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
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
<PAGE>
54
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 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 default
<PAGE>
55
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 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
<PAGE>
56
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 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.
<PAGE>
57
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.
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.
<PAGE>
58
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.
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.
<PAGE>
59
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 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.
<PAGE>
60
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.
- -------------------
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>
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
WACHOVIA CORPORATION
By: /s/ Donald K. Truslow
---------------------------------------
[SEAL]
Attest:
/s/ Alice Washington Grogan
- --------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Joanne Adamis
------------------------------------
[SEAL]
Attest:
/s/ Gregory P. Shea
- ---------------------------------
<PAGE>
62
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>
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
- ---------------
<PAGE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Exhibit 5(a)
May 24, 1999
Wachovia Corporation
100 North Main Street
Winston-Salem, North Carolina 27101
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1993,
as amended (the "Act"), of $1,700,000,000 aggregate principal amount of debt
securities consisting of senior debt securities and/or subordinated debt
securities (the "Debt Securities") of Wachovia Corporation, a North Carolina
corporation (the "Company"), I, as Senior Vice President, Counsel and Secretary
of the Company, have examined such corporate records, certificates and other
documents, and such questions of law, as I have considered necessary or
appropriate for purposes of this opinion. Each capitalized term used herein,
unless otherwise defined herein, has the meaning ascribed to it in the
Registration Statement filed with the Securities and Exchange Commission as of
the date hereof (the "Registration Statement").
For the purposes of giving the opinion set forth below, I have assumed
the following with respect to the sale of Debt Securities: (i) that the sale
will be pursuant to the terms and conditions as contemplated in the Registration
Statement, which will have become and remain effective under the Act; (ii) that
all necessary Company actions, approvals, and authorizations will have been
taken or obtained, and that such actions will be in conformity with applicable
law; (iii) that all necessary filings and approvals with any regulatory
authority will have been made or obtained, including, without limitation, the
fixing of terms with respect to any security, and that such actions will be in
conformity with applicable law; (iv) any actions, approvals or authorizations
required by any applicable indenture will have been taken or obtained; (v) that
the required consideration will have been received by the Company; and (vi) that
all parties, other than the Company, will have taken or obtained any and all
necessary actions, authorizations and approvals, that such actions will be in
conformity with applicable law and that any document executed and delivered by
such parties will be enforceable against such parties.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, it is my opinion that the Debt Securities, when
authorized and sold as contemplated in the Registration Statement, will be
validly issued by the Company and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
My opinion set forth in the preceding paragraph is subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether
<PAGE>
2
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
Insofar as the opinion set forth herein relates to issues governed by
the law of the State of New York, I have relied on the accompanying opinion of
Simpson Thacher & Bartlett.
I consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Prospectus. In giving such consent, I do not thereby admit that
I am in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ William M. Watson, Jr.
William M. Watson, Jr.
<PAGE>
Exhibit 5(b)
May 24,1999
Wachovia Corporation
100 North Main Street
Winston-Salem, North Carolina 27101
Ladies and Gentlemen:
This opinion is delivered to you in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed by Wachovia
Corporation, a North Carolina corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, relating to the proposed issuance by the Company of $1,700,000,000
aggregate principal amount of debt securities consisting of senior debt
securities and/or subordinated debt securities (the "Securities"). The
Securities will be issued under either a senior indenture or a subordinated
indenture (the "Indentures"), each between the Company and The Chase Manhattan
Bank, as Trustee.
We have examined the Registration Statement and the Indentures, which
have been filed with the Commission as exhibits to the Registration Statement.
We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the
<PAGE>
originals of such latter documents. We also have assumed that the Indentures are
the valid and legally binding obligations of the Trustee. We have assumed
further that (1) the Company has duly authorized, executed and delivered the
Indentures and (2) execution, delivery and performance by the Company of the
Indentures and the Securities do not and will not violate the laws of the State
of North Carolina or any other applicable laws (excepting the laws of the State
of New York and the Federal laws of the United States).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that assuming (a) the taking of
all necessary corporate action to approve the issuance and terms of the
Securities, the terms of the offering thereof and related matters by the Board
of Directors of the Company, a duly constituted and acting committee of such
Board or duly authorized officers of the Company (such Board of Directors,
committee or authorized officers being hereinafter referred to as the Board)
and (b) the due execution, authentication, issuance and delivery of the
Securities, upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the Indentures and
such agreement, the Securities will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms.
Our opinion set forth above is subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States. William M. Watson, Jr.,
Senior Vice President, Counsel and Secretary of the
<PAGE>
Company, is authorized to rely on this opinion letter as to matters of New York
law in rendering his opinion filed as Exhibit 5(a) to the Registration
Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5(b)
to the Registration Statement and to the use of our name under the caption
"Legal Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/S/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
<PAGE>
Exhibit 12
WACHOVIA CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
(A) EXCLUDING INTEREST ON 1999 1998 1997 1996 1995 1994
DEPOSITS ------------------- ------------- ------------ ------------ -------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $368,745 $1,303,781 $ 869,119 $1,100,308 $1,023,290 $ 885,402
Less capitalized interest (43) (593) (167) -- (1,530) (362)
Fixed charges 220,610 976,201 884,806 900,277 885,040 603,157
-------- ---------- ---------- ---------- ---------- ----------
Earnings as adjusted $589,312 $2,279,389 $1,753,758 $2,000,585 $1,906,800 $1,488,197
======== ========== ========== ========== ========== ==========
Fixed charges:
Interest on purchased and
other short term borrowed
funds $103,170 $ 563,846 $ 478,162 $ 482,236 $ 527,765 $ 318,301
Interest on long-term debt 111,773 390,662 387,107 399,796 340,211 267,841
Portion of rents 5,667 21,693 19,537 18,245 17,064 17,015
representative of the -------- ---------- ---------- ---------- ---------- ----------
interest factor (1/3) of
rental expense
Fixed charges $220,610 $ 976,201 $ 884,806 $ 900,277 $ 885,040 $ 603,157
======== ========== ========== ========== ========== ==========
Ratio of earnings to fixed
charges 2.67 x 2.33 x 1.98 x 2.22 x 2.15 x 2.47 x
(B) INCLUDING INTEREST ON
DEPOSITS
Adjusted earnings from $589,312 $2,279,389 $1,753,758 $2,000,585 $1,906,800 $1,488,197
(A) above
Add interest on deposits 307,367 1,359,705 1,303,549 1,203,739 1,143,179 782,864
-------- ---------- ---------- ---------- ---------- ----------
Earnings as adjusted $896,679 $3,639,094 $3,057,307 $3,204,324 $3,049,979 $2,271,061
======== ========== ========== ========== ========== ==========
Fixed charges:
Fixed charges from (A) $220,610 $ 976,201 $ 884,806 $ 900,277 $ 885,040 $ 603,157
above
Interest on deposits 307,367 1,359,705 1,303,549 1,203,739 1,143,179 782,864
-------- ---------- ---------- ---------- ---------- ----------
Adjusted fixed charges $527,977 $2,335,906 $2,188,355 $2,104,016 $2,028,219 $1,386,021
======== ========== ========== ========== ========== ==========
Adjusted earnings to
adjusted fixed charges 1.70 x 1.56 x 1.40 x 1.52 x 1.50 x 1.64 x
</TABLE>
<PAGE>
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statements (Form S-3) and related Prospectus of Wachovia
Corporation for the registration of $2,500,000 of debt securities and to the
incorporation by reference therein of our report dated January 14, 1999, with
respect to the consolidated financial statements of Wachovia Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Winston-Salem, North Carolina
May 19, 1999
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Wachovia Corporation:
We consent to the use of our reports with respect to Central Fidelity National
Bank and Central Fidelity Banks, Inc. incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
Richmond, Virginia
May 17, 1999
<PAGE>
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors of
Wachovia Corporation (the "Corporation"), and each of us, do hereby appoint
Kenneth W. McAllister and William M. Watson, Jr., and each of them, our true and
lawful attorneys-in-fact (with full power of substitution and resubstitution) to
act for us and in our name, place and stead in our capacities as directors of
Wachovia Corporation, to a new Registration Statement on Form S-3, or other
applicable form, relating to an offering of not more than $2.5 billion of the
Corporation's senior and/or subordinated debt securities, with the Securities
and Exchange Commission, and to sign and file all amendments to the Registration
Statement, with any exhibits and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact,
and each of them individually, full power and authority to take all actions
necessary to effect the purposes of this Power of Attorney, as fully to all
intents and purposes as we might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact or either of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
This the 12th day of May 1999.
/s/ L .M. Baker, Jr.
- ----------------------------------------------
L. M. Baker, Jr.
/s/ Peter C. Browning
- -------------------------------------------
Peter C. Browning
/s/ John L. Clendenin
- ------------------------------------------
John L. Clendenin
/s/ George W. Henderson, III
- -------------------------------------
George W. Henderson, III
/s/ Robert A. Ingram
- -------------------------------------------
Robert A. Ingram
/s/ Elizabeth Valk Long
- -----------------------------------------
Elizabeth Valk Long
/s/ Lloyd U. Noland, III
- ------------------------------------------
Lloyd U. Noland, III
/s/ John C. Whitaker, Jr.
- ------------------------------------------
John C. Whitaker, Jr.
/s/ James S. Balloun
- ------------------------------------------------
James S. Balloun
/s/ John T. Casteen III
- ------------------------------------------------
John T. Casteen III
/s/ Thomas K. Hearn, Jr.
- --------------------------------------------
Thomas K. Hearn, Jr.
/s/ W. Hayne Hipp
- ----------------------------------------------
W. Hayne Hipp
/s/ George R. Lewis
- ----------------------------------------------
George R. Lewis
/s/ John G. Medlin, Jr.
- ----------------------------------------------
John G. Medlin, Jr.
/s/ Sherwood H. Smith, Jr.
- -------------------------------------------
Sherwood H. Smith, Jr.
<PAGE>
Exhibit 24 (b)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers of Wachovia
Corporation (the "Corporation"), and each of us, do hereby appoint Kenneth W.
McAllister and William M. Watson, Jr., and each of them, our true and lawful
attorneys-in-fact (with full power of substitution and resubstitution) to act
for us and in our name, place and stead in the capacities set forth opposite our
names, to execute for us and in our behalf, a new Registration Statement on Form
S-3, or other applicable form, relating to an offering of not more than $2.5
billion of the Corporation's senior and/or subordinated debt securities, with
the Securities and Exchange Commission, and to sign and file all amendments to
the Registration Statement, with any exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact, and each of them individually, full power and authority to
take all actions necessary to effect the purposes of this Power of Attorney, as
fully to all intents and purposes as we might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact or either of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
This the 21st day of May 1999.
/s/ Robert S. McCoy, Jr. Vice Chairman and
- --------------------------------- Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial Officer)
/s/ Donald K. Truslow Senior Executive Vice
- --------------------------------- President, Comptroller, and
Donald K. Truslow Treasurer (Principal Financial
Officer)
<PAGE>
EXHIBIT 25(a)
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
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)
---------------------------------------------
Senior 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.
- 2 -
<PAGE>
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.
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 12th day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
------------------------
Joanne Adamis
Second Vice President
- 3 -
<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 December 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
Cash and balances due from depository institutions:
<S> <C>
Noninterest-bearing balances and
currency and coin......................................................... $ 13,915
Interest-bearing balances................................................. 7,805
Securities:
Held to maturity securities.................................................... 1,429
Available for sale securities.................................................. 56,327
Federal funds sold and securities purchased under
agreements to resell...................................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income.................................. $131,095
Less: Allowance for loan and lease losses................................. 2,711
Less: Allocated transfer risk reserve..................................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................................... 128,384
Trading Assets................................................................. 48,949
Premises and fixed assets (including capitalized
leases)................................................................... 3,095
Other real estate owned........................................................ 239
Investments in unconsolidated subsidiaries and
associated companies...................................................... 199
Customers' liability to this bank on acceptances
outstanding............................................................... 1,209
Intangible assets.............................................................. 2,081
Other assets................................................................... 11,352
--------
TOTAL ASSETS................................................................... $296,717
========
</TABLE>
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices.......................... $105,879
Noninterest-bearing...................$39,175
Interest-bearing.......................66,704
In foreign offices, Edge and Agreement,
subsidiaries and IBF's....................... 79,294
Noninterest-bearing ...................$4,082
Interest-bearing.......................75,212
Federal funds purchased and securities sold under
agreements to repurchase............................. 32,546
Demand notes issued to the U.S. Treasury............. 629
Trading liabilities.................................. 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less 4,478
With a remaining maturity of more than one year
through three years........................ 213
With a remaining maturity of more than three
years...................................... 115
Bank's liability on acceptances executed and
outstanding......................................... 1,209
Subordinated notes and debentures.................... 5,408
Other liabilities.................................... 10,855
TOTAL LIABILITIES.................................... 277,433
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 11,016
Undivided profits and capital reserves..................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities........................... 279
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $296,717
========
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 in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
- 5 -
<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.
- 2 -
<PAGE>
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.
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 12th day of May, 1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
------------------------
Joanne Adamis
Second Vice President
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<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 December 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>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 13,915
Interest-bearing balances ......................... 7,805
Securities: ..........................................
Held to maturity securities .......................... 1,429
Available for sale securities ........................ 56,327
Federal funds sold and securities purchased under
agreements to resell .............................. 21,733
Loans and lease financing receivables;
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve ... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 128,384
Trading Assets ....................................... 48,949
Premises and fixed assets (including capitalized
leases) ........................................... 3,095
Other real estate owned .............................. 239
Investments in unconsolidated subsidiaries and
associated companies ............................. 199
Customers' liability to this bank on acceptances
outstanding ...................................... 1,209
Intangible assets .................................... 2,081
Other assets ......................................... 11,352
------
TOTAL ASSETS ......................................... $296,717
========
</TABLE>
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices.......................... $105,879
Noninterest-bearing...................$39,175
Interest-bearing.......................66,704
In foreign offices, Edge and Agreement,
subsidiaries and IBF's....................... 79,294
Noninterest-bearing ...................$4,082
Interest-bearing.......................75,212
Federal funds purchased and securities sold under
agreements to repurchase............................. 32,546
Demand notes issued to the U.S. Treasury............. 629
Trading liabilities.................................. 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less 4,478
With a remaining maturity of more than one year
through three years........................ 213
With a remaining maturity of more than three
years...................................... 115
Bank's liability on acceptances executed and
outstanding......................................... 1,209
Subordinated notes and debentures.................... 5,408
Other liabilities.................................... 10,855
TOTAL LIABILITIES.................................... 277,433
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 11,016
Undivided profits and capital reserves..................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities........................... 279
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $296,717
========
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 in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
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