-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OrKuPcDEWEO5iGJ2pz7X3caRse3C/G9vbtdgCCbCQMtrcmaUM4ldW/WRclMG3BMs MyPzYbnD3mrNqwil2yXVwQ== 0000950144-96-005706.txt : 19960819 0000950144-96-005706.hdr.sgml : 19960819 ACCESSION NUMBER: 0000950144-96-005706 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 9 REFERENCES 429: 033-06280 FILED AS OF DATE: 19960816 SROS: BSE SROS: CSX SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WACHOVIA CORP/ NC CENTRAL INDEX KEY: 0000774203 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 561473727 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-06319 FILM NUMBER: 96616808 BUSINESS ADDRESS: STREET 1: 301 NORTH MAIN ST CITY: WINSTON SALEM STATE: NC ZIP: 27150 BUSINESS PHONE: 9197705000 MAIL ADDRESS: STREET 1: 301 NORTH MAIN ST CITY: WINSTON SALEM STATE: NC ZIP: 27150 FORMER COMPANY: FORMER CONFORMED NAME: FIRST WACHOVIA CORP DATE OF NAME CHANGE: 19910603 POS AM 1 WACHOVIA CORPORATION POS AM #1 TO FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1996 REGISTRATION NO. 333-6319 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 WACHOVIA CORPORATION (Exact name of registrant as specified in its charter) NORTH CAROLINA 56-1473727 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 100 NORTH MAIN STREET 191 PEACHTREE STREET, N.E. WINSTON-SALEM, NORTH CAROLINA 27101 AND ATLANTA, GEORGIA 30303 (910) 770-5000 (404) 332-5000
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) KENNETH W. MCALLISTER WACHOVIA CORPORATION 100 NORTH MAIN STREET WINSTON-SALEM, NORTH CAROLINA 27101 (910) 732-5141 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- COPY TO: JEFFREY M. STEIN KING & SPALDING 191 PEACHTREE STREET ATLANTA, GEORGIA 30303 (404) 572-4600 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - --------------- If delivery of the prospectus is expected to be made pursuant to Rule 474, please check the following box. / / PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE UNSOLD $200,000,000 PRINCIPAL AMOUNT OF SENIOR DEBT SECURITIES REGISTERED UNDER A PREVIOUSLY FILED REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 33-6280). - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1996 REGISTRATION NO. 33-6280 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 WACHOVIA CORPORATION ------------------------------------------- (Exact name of registrant as specified in its charter) NORTH CAROLINA 56-1473727 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 100 NORTH MAIN STREET 191 PEACHTREE STREET, N.E. --- --- ---- WINSTON-SALEM, NORTH CAROLINA 27101 AND ATLANTA, GEORGIA 30303 ----- ----- (910) 770-5000 (404) 332-5000 ---
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) KENNETH W. MCALLISTER ------------------------ WACHOVIA CORPORATION ------------------------ 100 NORTH MAIN STREET --- WINSTON-SALEM, NORTH CAROLINA 27101 ----- (910) 732-5141 --- (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- COPY TO: JEFFREY M. STEIN ----------------- KING & SPALDING ------------------ 191 PEACHTREE STREET ---------------------- ATLANTA, GEORGIA 30303 ------------------------ (404) 572-4600 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - --------------- If delivery of the prospectus is expected to be made pursuant to Rule 474, please check the following box. / / PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE UNSOLD $1,000,000,000 PRINCIPAL AMOUNT OF SUBORDINATED DEBT SECURITIES REGISTERED UNDER A PREVIOUSLY FILED REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-6319). - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 3 PROSPECTUS WACHOVIA CORPORATION SENIOR DEBT SECURITIES SUBORDINATED DEBT SECURITIES --------------------- Wachovia Corporation (the "Corporation") may offer from time to time up to $1,200,000,000 aggregate principal amount (or its equivalent based on the applicable exchange rate at the time of offering if denominated in foreign currencies) of its unsecured debt securities (the "Securities") consisting of (i) up to $200,000,000 aggregate principal amount of its senior debt securities (the "Senior Securities"), and (ii) up to $1,000,000,000 aggregate principal amount of its subordinated debt securities (the "Subordinated Securities"), each on terms to be determined by market conditions at the time of sale. As used herein, the Securities shall include securities denominated in U.S. dollars or, if so specified in the applicable Prospectus Supplement, in any other currency, including composite currencies such as the European Currency Unit. The Securities may be sold directly by the Corporation to the public or through agents designated from time to time, through underwriting syndicates led by one or more managing underwriters or through one or more underwriters acting alone. The specific aggregate principal amount, maturity, rate and time of payment of interest, if any, purchase price, any terms for redemption or other special terms relating to the Securities in respect of which this Prospectus is being delivered ("Offered Securities") are set forth in the accompanying Prospectus Supplement (the "Prospectus Supplement"), together with the terms of offering of the Offered Securities. The Senior Securities, when issued, will be unsecured and will rank on a parity with all unsecured and unsubordinated indebtedness of the Corporation. The Subordinated Securities, when issued, will be unsecured and will be subordinate to Senior Indebtedness of the Corporation and, under certain circumstances, to Additional Senior Obligations of the Corporation, each as defined herein. Payment of principal of the Subordinated Securities may be accelerated only in the case of the bankruptcy of the Corporation. There is no right of acceleration in the case of a default in the payment of the principal of, or any premium or interest on, the Subordinated Securities or in the performance of any covenant or agreement of the Corporation. The Securities of a series may be issued in definitive registered form without coupons ("Registered Securities") or in the form of one or more book-entry securities in registered form ("Book-Entry Securities"). If any agent of the Corporation, or any underwriter, is involved in the sale of the Securities offered hereby, the name of such agent or underwriter and any applicable commissions or discounts are set forth in, or may be calculated from, the Prospectus Supplement, and the net proceeds to the Corporation from such sale will be the purchase price of such Securities less such commissions or discounts and the other attributable issuance and distribution expenses. See "Plan of Distribution" for possible indemnification arrangements for agents or underwriters. --------------------- THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION, WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND WILL NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY. --------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- The date of this Prospectus is August , 1996. 4 AVAILABLE INFORMATION The Corporation is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities of the Commission, at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's Regional Offices in New York (13th Floor, 7 World Trade Center, New York, New York 10048) and Chicago (Suite 1400, 500 West Madison Street, Chicago, Illinois 60661-2511), and copies of such material can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at prescribed rates. In addition, such material can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus does not contain all the information set forth in the Registration Statement on Form S-3 of which this Prospectus is a part and the exhibits thereto which the Corporation has filed with the Commission under the Securities Act of 1933 (the "Securities Act") and to which reference is hereby made. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Corporation hereby incorporates by reference in this Prospectus the following reports filed with the Commission pursuant to Section 13 of the Exchange Act: (a) the Corporation's Annual Report on Form 10-K for the year ended December 31, 1995; and (b) the Corporation's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996. All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Securities offered hereby shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO WACHOVIA CORPORATION, 100 NORTH MAIN STREET, WINSTON-SALEM, NORTH CAROLINA 27101, ATTENTION: GENERAL COUNSEL. TELEPHONE REQUESTS MAY BE DIRECTED TO (910) 770-5000. WACHOVIA CORPORATION Wachovia Corporation (the "Corporation") is a bank holding company organized in 1985 under the laws of the State of North Carolina. The Corporation is the 20th largest bank holding company in the United States, based on total assets at June 30, 1996. At June 30, 1996, the Corporation had consolidated assets of $46.0 billion, consolidated loans net of unearned income of $30.7 billion, consolidated deposits of $26.0 billion and consolidated shareholders' equity of $3.7 billion. The Corporation's principal assets consist of all the outstanding common stock of Wachovia Bank of North Carolina, N.A., Wachovia Bank of Georgia, N.A. and Wachovia Bank of South Carolina, N.A., national banking associations organized under the laws of the United States. Wachovia Bank of North Carolina, N.A. provides personal, commercial, trust and institutional banking services through 219 full-service banking offices in 95 North Carolina cities and communities and one corporate and private banking office in Norfolk, Virginia. In addition, it has a foreign branch in Grand Cayman and an Edge Act subsidiary, Wachovia International Banking Corporation, with branch offices in 2 5 New York City, Charlotte, North Carolina, Columbia, South Carolina and Atlanta, Georgia. At June 30, 1996, Wachovia Bank of North Carolina, N.A. had total assets of $26.9 billion and total deposits of $12.5 billion. Wachovia Bank of Georgia, N.A. provides a full range of banking services through its network of 126 offices in 49 cities and communities in Georgia, and a foreign branch in Grand Cayman. At June 30, 1996, Wachovia Bank of Georgia, N.A. had total assets of $18.1 billion and total deposits of $8.5 billion. Wachovia Bank of South Carolina provides full service banking through 143 offices in 64 South Carolina cities and communities and a foreign branch in the Cayman Islands. At June 30, 1996, Wachovia Bank of South Carolina, N.A. had total assets of $7.3 billion and total deposits of $5.5 billion. The Corporation also has bank-related subsidiaries engaged in mortgage banking, credit card services, discount brokerage, savings and loan activities and credit-related insurance. The Corporation has dual executive offices located at 100 North Main Street, Winston-Salem, North Carolina 27101 and 191 Peachtree Street, N.E., Atlanta, Georgia 30303, and its telephone numbers are (910) 770-5000 and (404) 332-5000, respectively. CERTAIN REGULATORY CONSIDERATIONS GENERAL As a bank holding company, the Corporation is subject to the regulation and supervision of the Federal Reserve Board. The Corporation's subsidiary banks (the "Subsidiary Banks"), as national banking associations, are subject to supervision and examination by the Office of the Comptroller of the Currency (the "Comptroller") and the Federal Deposit Insurance Corporation (the "FDIC"). In addition, as a savings and loan holding company, the Corporation is registered with the Office of Thrift Supervision ("OTS") and is subject to OTS regulations, supervision and reporting requirements. The Corporation's subsidiary savings bank, Atlantic Savings Bank, F.S.B. ("Atlantic"), also is subject to supervision and examination by OTS. The Subsidiary Banks and Atlantic are also subject to various requirements and restrictions, including requirements to maintain reserves against deposits, restrictions on the types and amounts of loans that may be granted and the interest that may be charged thereon, and limitations on the types of investments that may be made and the types of services that may be offered. Various consumer laws and regulations also affect the operations of the Subsidiary Banks and Atlantic. In addition to the impact of regulation, commercial banks and savings banks are affected significantly by the actions of the Federal Reserve Board as it attempts to control the money supply and credit availability in order to influence the economy. The federal banking agencies have broad enforcement powers over depository institutions, including the power to terminate deposit insurance, to impose substantial fines and other civil and criminal penalties, and to appoint a conservator or receiver if any of a number of conditions are met. The federal banking agencies also have broad enforcement powers over bank holding companies, including the power to impose substantial fines and other civil and criminal penalties. Almost every aspect of the operations and financial condition of the Subsidiary Banks is subject to extensive regulation and supervision and to various requirements and restrictions under federal and state law, including requirements governing capital adequacy, liquidity, earnings, dividends, reserves against deposits, management practices, branching, loans, investments and the provision of services. The activities and operations of the Corporation also are subject to extensive federal supervision and regulation which, among other things, limit non-banking activities, impose minimum capital requirements and require approval to acquire 5% of any class of voting shares or substantially all of the assets of a bank or other company. In addition to the impact of regulation, banks and bank holding companies may be significantly affected by legislation, which can change banking statutes in substantial and unpredictable ways, and by the actions of the Federal Reserve Board as it attempts to control the money supply and credit availability in order to influence the economy. 3 6 PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS The Corporation is a legal entity separate and distinct from its subsidiaries, including the Subsidiary Banks and Atlantic. There are various legal and regulatory limitations on the extent to which the Corporation's subsidiaries, including its bank subsidiaries and its savings and loan subsidiary, can finance or otherwise supply funds to the Corporation. The principal source of the Corporation's cash revenues is dividends from its subsidiaries and there are certain legal restrictions under federal and state law on the payment of dividends by such subsidiaries. The prior approval of the Comptroller is required if the total of all dividends declared by any national banking association in any calendar year exceeds the bank's net profits (as defined) for that year combined with its retained net profits for the preceding two calendar years, less any required transfers to surplus or a fund for the retirement of any preferred stock. In addition, a dividend may not be paid in excess of a bank's "undivided profits then on hand," after deduction therefrom of losses in excess of the "allowance for loan and lease losses," as such terms are defined in the applicable regulations. The relevant regulatory agencies also have authority to prohibit a bank holding company, which would include Wachovia Corporation, or a national banking association from engaging in what, in the opinion of such regulatory body, constitutes an unsafe or unsound practice in conducting its business. The payment of dividends could, depending upon the financial condition of the subsidiary, be deemed to constitute such an unsafe or unsound practice. Under applicable law, as a savings bank, Atlantic must give the OTS 30 days prior notice of any proposed payment of dividends. Retained earnings of the Corporation's banking subsidiaries available for payment of cash dividends under all applicable regulations without obtaining governmental approval were approximately $532 million as of December 31, 1995. In addition, the Subsidiary Banks and their subsidiaries are subject to limitations under Section 23A of the Federal Reserve Act with respect to extensions of credit to, investments in, and certain other transactions with, the Corporation and its other subsidiaries. Furthermore, loans and extensions of credit are also subject to various collateral requirements. CAPITAL ADEQUACY The federal bank regulatory agencies have adopted minimum risk-based and leverage capital guidelines for United States banking organizations. The minimum required risk-based capital ratio of qualifying total capital to risk-weighted assets (including certain off-balance-sheet items, such as standby letters of credit) is 8%, of which 4% must consist of Tier 1 capital. As of June 30, 1996, the Corporation's total risk-based capital ratio was 13.04%, including 9.05% of Tier 1 capital. The minimum required leverage capital ratio (Tier 1 capital to average total assets) is 3% for banking organizations that meet certain specified criteria, including that they have the highest regulatory rating. A higher leverage ratio may apply under certain circumstances. As of June 30, 1996, the Corporation's leverage capital ratio was 8.12%. Failure to meet capital guidelines can subject a banking organization to a variety of enforcement remedies, including additional substantial restrictions on its operations and activities, termination of deposit insurance by the FDIC, and under certain conditions the appointment of a receiver or conservator. Federal banking statutes establish five capital categories for depository institutions ("well capitalized," "adequately capitalized," "undercapitalized," "significantly undercapitalized" and "critically undercapitalized"), and impose significant restrictions on the operations of an institution that is not at least adequately capitalized. Under certain circumstances, an institution may be downgraded to a category lower than that warranted by its capital levels, and subjected to the supervisory restrictions applicable to institutions in the lower capital category. A depository institution is generally prohibited from making capital distributions (including paying dividends) or paying management fees to a holding company if the institution would thereafter be undercapitalized. Adequately capitalized institutions may accept brokered deposits only with a waiver from the FDIC, while undercapitalized institutions may not accept, renew, or roll over brokered deposits. 4 7 An undercapitalized depository institution is also subject to restrictions in a number of areas, including asset growth, acquisitions, branching, new lines of business, and borrowing from the Federal Reserve System. In addition, an undercapitalized depository institution is required to submit a capital restoration plan. A depository institution's holding company must guarantee the capital plan up to an amount equal to the lesser of 5% of the depository institution's assets at the time it becomes undercapitalized or the amount needed to restore the capital of the institution to the levels required for the institution to be classified as adequately capitalized at the time the institution fails to comply with the plan and any such guarantee would be entitled to a priority of payment in bankruptcy. A depository institution is treated as if it is significantly undercapitalized if it fails to submit a capital plan that is based on realistic assumptions and is likely to succeed in restoring the depository institution's capital. Significantly undercapitalized depository institutions may be subject to a number of additional significant requirements and restrictions, including requirements to sell sufficient voting stock to become adequately capitalized, to replace or improve management, to reduce total assets, to cease acceptance of correspondent bank deposits, to restrict senior executive compensation and to limit transactions with affiliates. Critically undercapitalized depository institutions are further subject to restrictions on paying principal or interest on subordinated debt, making investments, expanding, acquiring or selling assets, extending credit for highly-leveraged transactions, paying excessive compensation, amending their charters or bylaws and making any material changes in accounting methods. In general, a receiver or conservator must be appointed for a depository institution within 90 days after the institution is deemed to be critically undercapitalized. SUPPORT OF SUBSIDIARY BANKS Under Federal Reserve Board policy, the Corporation is expected to act as a source of financial strength to, and to commit resources to support, each of the Subsidiary Banks. This support may be required at times when, absent such Federal Reserve Board policy, the Corporation may not be inclined to provide it. In the event of a bank holding company's bankruptcy, any commitment by the bank holding company to a federal bank regulatory agency to maintain the capital of a subsidiary bank will be assumed by the bankruptcy trustee and entitled to a priority of payment. A depository institution insured by the FDIC can be held liable for any loss incurred by, or reasonably expected to be incurred by, the FDIC in connection with the default of a commonly controlled FDIC-insured depository institution or any assistance provided by the FDIC to any commonly controlled FDIC-insured depository institution "in danger of default". "Default" is defined generally as the appointment of a conservator or receiver and "in danger of default" is defined generally as the existence of certain conditions indicating that a default is likely to occur in the absence of regulatory assistance. Liability for the losses of commonly-controlled depository institutions can lead to the failure of some or all depository institutions in a holding company structure, if the remaining institutions are unable to pay the liability assessed by the FDIC. Any obligation or liability owed by a subsidiary bank to its parent company is subordinate to the subsidiary bank's cross-guarantee liability for losses of commonly-controlled depository institutions. FDIC INSURANCE ASSESSMENTS The Subsidiary Banks are subject to FDIC deposit insurance assessments. The FDIC has authority to raise or lower assessment rates on insured deposits in order to achieve certain designated reserve ratios in the Bank Insurance Fund ("BIF") and the Savings Association Insurance Fund ("SAIF") and to impose special additional assessments. The FDIC applies a risk-based assessment system that places each financial institution into one of nine risk categories, based on capital levels and supervisory criteria and an evaluation of the bank's risk to the BIF or SAIF, as applicable. The current FDIC premium schedule for the SAIF ranges from 0.23% to 0.31% of deposits. The current FDIC premium schedule for the BIF (effective January 1, 1996) ranges from 0% (subject to a $2,000 minimum) to 0.27%. 5 8 CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES The following unaudited table presents the consolidated ratio of earnings to fixed charges of the Corporation for the periods indicated. The consolidated ratio of earnings to fixed charges has been computed by dividing net income plus all applicable income taxes plus fixed charges by fixed charges. Fixed charges represent all interest expense (ratios are presented both excluding and including interest on deposits), and the portion of net rental expense which is deemed to be equivalent to interest on long-term debt. Interest expense (other than on deposits) includes interest on long-term debt, federal funds purchased and securities sold under agreements to repurchase, mortgages, commercial paper and other funds borrowed.
SIX MONTHS YEAR ENDED DECEMBER 31, ENDED -------------------------------- JUNE 30, 1996 1995 1994 1993 1992 1991 ------------- ---- ---- ---- ---- ---- Including interest on deposits....................... 1.55 1.54 1.72 1.81 1.61 1.19 Excluding interest on deposits....................... 2.41 2.13 2.48 3.32 3.57 1.71
USE OF PROCEEDS The net proceeds from the sale of the Securities will be used for general corporate purposes, principally to fund investments in, or extensions of credit to, the Corporation's banking and nonbanking subsidiaries. The Corporation also may use such proceeds to allow its subsidiaries to repay borrowings incurred by such subsidiaries. Except as otherwise described in the Prospectus Supplement, specific allocations of the proceeds to such purposes will not have been made at the date of the Prospectus Supplement, although management of the Corporation will have determined that funds should be borrowed at that time in anticipation of future funding or capital requirements of its subsidiaries. The precise amount and timing of such investments in and extensions of credit to the subsidiaries will depend upon their funding requirements and the availability of other funds to the Corporation and its subsidiaries. In addition to the foregoing, the Corporation may also use a portion of the net proceeds to fund possible acquisitions if suitable opportunities develop in the future. Based upon the anticipated future financing requirements of the Corporation and its subsidiaries, the Corporation expects that it will, from time to time, engage in additional financings of a character and in amounts to be determined. DESCRIPTION OF SECURITIES GENERAL The following sets forth certain general terms and provisions of the Securities offered hereby. The particular terms of the Securities offered by any Prospectus Supplement will be described in the Prospectus Supplement relating to such Offered Securities (the "Applicable Prospectus Supplement"). The Senior Securities are to be issued under an Indenture dated as of August 15, 1996 (the "Senior Indenture") between the Corporation and The Chase Manhattan Bank, as trustee (the "Senior Trustee"). The Subordinated Securities are to be issued under an Indenture dated as of March 1, 1993 (the "Subordinated Indenture") between the Corporation and Mellon Bank, N.A., as trustee (the "Subordinated Trustee"). Copies of the Senior Indenture and the Subordinated Indenture (collectively, the "Indentures") are included as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the Securities and the Indentures do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indenture applicable to a particular series of Senior Securities or Subordinated Securities (the "Applicable Indenture"), including the definitions therein of certain terms. References to the "Applicable Trustee" refer to the Senior Trustee or the Subordinated Trustee, as the context indicates. Wherever particular Sections, Articles or defined terms of the Indentures are referred to, it is intended that such Sections, Articles or defined terms shall be incorporated herein by reference. Article and Section references used herein are references to the Applicable Indenture except where specific reference is made to either the Senior Indenture or the Subordinated Indenture. 6 9 Capitalized terms not otherwise defined in this Prospectus shall have the meanings given to them in the Applicable Indenture. The Senior Securities will be unsecured and will rank on a parity with all unsecured and unsubordinated indebtedness of the Corporation. The Senior Indenture contains covenants prohibiting the Corporation from disposing of, or permitting the issuance of, capital stock of specified subsidiaries under certain circumstances. See "Restrictive Covenants Applicable to Senior Securities." The Subordinated Securities will be unsecured and will be subordinated and junior to all Senior Indebtedness and, in certain circumstances relating to the dissolution, winding-up, liquidation or reorganization of the Corporation, to all Additional Senior Obligations (each as defined below under "Subordination of Subordinated Securities"). The Subordinated Indenture does not contain covenants prohibiting the Corporation from disposing of voting stock of its subsidiaries, including the stock of any of its banking subsidiaries. Events of default as to which payment of the principal of the Subordinated Securities may be accelerated are limited to events relating to the bankruptcy of the Corporation. See "Subordination of Subordinated Securities" and "Events of Default; Limited Rights of Acceleration for Subordinated Securities." The Indentures do not limit the amount of Securities that may be issued thereunder and provide that Securities may be issued thereunder from time to time in one or more series. (Section 301) Neither the Indentures nor the Securities will limit or otherwise restrict the amount of other indebtedness which may be incurred by the Corporation or any of its subsidiaries. In addition, the Indentures and the Securities will not contain any provision that would require the Corporation to repurchase or redeem or otherwise modify the terms of the Securities upon a change in control or other events involving the Corporation that may adversely affect the credit quality of the Corporation. Because the Corporation is a holding company, its rights and the rights of its creditors, including the holders of the Securities, to participate in the assets of any subsidiary upon the liquidation or reorganization of such a subsidiary will be subject to the prior claims of such subsidiaries' creditors (including, in the case of a subsidiary bank, its depositors) except to the extent that the Corporation may itself be a creditor with recognized claims against the subsidiary. Claims on subsidiaries of the Corporation by creditors other than the Corporation include claims with respect to long-term debt and substantial obligations with respect to deposit liabilities, federal funds purchased, securities sold under repurchase agreements and other short-term borrowings. See "Wachovia Corporation." Unless otherwise indicated in the Applicable Prospectus Supplement, principal of and premium, if any, and interest on the Securities will be payable at the office or agency of the Senior Trustee maintained for such purpose in New York, New York for Senior Securities, and at the office or agency of the Subordinated Trustee in Philadelphia, Pennsylvania for Subordinated Securities, and at any other office or agency maintained by the Corporation for such purposes, except that, at the option of the Corporation, interest may be paid by mailing a check to the address of the person entitled thereto as it appears on the Security Register. The transfer of Securities (other than Book-Entry Securities) will be registrable for each series of Securities at the corporate trust office of the Applicable Trustee. (Sections 301, 305 and 1002) The corporate trust offices of the Senior Trustee and the Subordinated Trustee are located in New York, New York and Philadelphia, Pennsylvania, respectively. Interest on the Securities will be payable to the person in whose name the Securities are registered at the close of business on the Regular Record Date designated for an Interest Payment Date. (Section 307) The Securities will be issued only in fully registered form without coupons and, unless otherwise indicated in the Applicable Prospectus Supplement, in denominations of $1,000 or integral multiples thereof. (Section 302) No service charge will be required for any registration of transfer or exchange of the Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith other than certain exchanges not involving any transfer. (Section 305) The Applicable Prospectus Supplement will describe the following terms of the Offered Securities: (a) the title of the Offered Securities; (b) whether the Offered Securities are Senior Securities or Subordinated Securities; (c) any limit on the aggregate principal amount of the Offered Securities; (d) the date or dates on which the Offered Securities will mature; (e) the rate or rates (which may be fixed or 7 10 variable) per annum at which the Offered Securities will bear interest, if any, the date or dates from which such interest, if any, will accrue, the dates on which such interest, if any, will be payable and the Regular Record Dates for such Interest Payment Dates; (f) the place or places, if any, in addition to the office or agency of the Applicable Trustee, where the principal of and premium, if any, and interest on the Offered Securities will be payable; (g) the period or periods within which, the price or prices at which and the terms and conditions upon which the Offered Securities may be redeemed, in whole or in part, at the option of the Corporation; (h) the obligation, if any, of the Corporation to redeem or purchase the Offered Securities pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Offered Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Offered Securities will be issuable; (j) the currency or currencies of payment of principal of and premium, if any, and interest on the Offered Securities if other than the currency of the United States of America; (k) any index used to determine the amount of payment of principal of, premium, if any, or interest on the Offered Securities; (l) if other than the principal amount thereof, the portion of the principal amount of the Offered Securities which will be payable upon the declaration of acceleration of the Maturity thereof, (m) the law which will govern the terms of the Securities; (n) information with respect to book-entry procedures, if any; and (o) any other terms of the Offered Securities. (Section 301) Securities may be issued as Original Issue Discount Securities to be offered and sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any such Original Issue Discount Securities will be described in the Applicable Prospectus Supplement. "Original Issue Discount Security" means any security which provides for an amount less than the principal amount thereof to be due and payable upon the declaration of acceleration of the Maturity thereof upon the occurrence of an Event of Default and the continuation thereof. (Section 101) BOOK-ENTRY SECURITIES The Securities of a series may be issued in the form of one or more Book-Entry Securities that will be deposited with a Depositary or its nominee identified in the Applicable Prospectus Supplement. (Section 301) In such a case, one or more Book-Entry Securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of Outstanding Securities of the series to be represented by such Book-Entry Security or Securities. Unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Book-Entry Security may not be transferred except as a whole by the Depositary for such Book-Entry Security to a nominee of such Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor of the Depositary or a nominee of such successor. (Section 305) The specific terms of the depositary arrangement with respect to any portion of a series of Securities to be represented by a Book-Entry Security will be described in the Applicable Prospectus Supplement. The Corporation anticipates that the following provisions will apply to all depositary arrangements. Upon the issuance of a Book-Entry Security, the Depositary for such Book-Entry Security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the Securities represented by such Book-Entry Security to the accounts of persons that have accounts with such Depositary ("participants"). Such accounts shall be designated by the underwriters or agents with respect to such Securities or by the Corporation if such Securities are offered and sold directly by the Corporation. Participants include securities brokers and dealers, banks and trust companies, clearing corporations and certain other organizations. Access to the Depositary's system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly ("indirect participants"). Persons who are not participants may beneficially own Book-Entry Securities held by the Depositary only through participants or indirect participants. Ownership of beneficial interests in any Book-Entry Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the Depositary or its nominee (with respect to 8 11 interests of participants) for such Book-Entry Security and on the records of participants (with respect to interests of indirect participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws, as well as the limits on participation in the Depositary's book-entry system, may impair the ability to transfer beneficial interests in a Book-Entry Security. So long as the Depositary or its nominee is the registered owner of a Book-Entry Security, such Depositary or such nominee will be considered the sole owner or holder of the Securities represented by such Book-Entry Security for all purposes under the Applicable Indenture. Except as provided below, owners of beneficial interests in Securities represented by Book-Entry Securities will not be entitled to have Securities of the series represented by such Book-Entry Security registered in their names, will not receive or be entitled to receive physical delivery of such Securities in definitive form, and will not be considered the owners or holders thereof under the Applicable Indenture. Payments of principal of and any premium and interest on Securities registered in the name of the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner of the Book-Entry Security representing such Securities. The Corporation expects that the Depositary for a series of Securities or its nominee, upon receipt of any payment of principal, premium or interest, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the Book-Entry Security for such Securities, as shown on the records of such Depositary or its nominee. The Corporation also expects that payments by participants and indirect participants to owners of beneficial interests in such Book-Entry Security held through such persons will be governed by standing instructions and customary practices, as is now the case with securities registered in "street name," and will be the responsibility of such participants and indirect participants. Neither the Corporation, the Applicable Trustee, any Authenticating Agent, any Paying Agent nor the Security Registrar for such Securities will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the Book-Entry Security for such Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. (Section 311) If the Depositary for Securities of a series notifies the Corporation that it is unwilling or unable to continue as Depositary or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act, the Corporation has agreed to appoint a successor depositary. If such a successor is not appointed by the Corporation with 90 days, the Corporation will issue Securities of such series in definitive registered form in exchange for the Book-Entry Security representing such series of Securities. In addition, the Corporation may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Book-Entry Securities shall no longer be represented by such Book-Entry Security or Securities and, in such event, will issue Securities of such series in definitive registered form in exchange for such Book-Entry Security or Securities representing such series of Securities. Further, if the Corporation so specifies with respect to the Securities of a series, or if an Event of Default, or an event which with notice, lapse of time or both would be an Event of Default with respect to the Securities of such series has occurred and is continuing, an owner of a beneficial interest in a Book-Entry Security representing Securities of such series may receive Securities of such series in definitive registered form. In any such instance, an owner of a beneficial interest in a Book-Entry Security will be entitled to physical delivery in definitive registered form of Securities of the series represented by such Book-Entry Security equal in principal amount to such beneficial interest and to have such Securities registered in its name. (Section 305) Securities so issued in definitive form will be issued in denominations of $1,000 and integral multiples thereof and will be issued in registered form only, without coupons. RESTRICTIVE COVENANTS APPLICABLE TO SENIOR SECURITIES The Senior Indenture contains a covenant that the Corporation will not directly or indirectly, (a) sell or permit to be issued any shares of capital stock of a Principal Subsidiary Bank (other than directors' qualifying shares) or any shares of capital stock of a Principal Subsidiary or any securities convertible into or rights to subscribe to such capital stock, unless, after giving effect to such transaction and to shares issuable upon 9 12 conversion or exercise of rights into such capital stock, at least 80% of the outstanding shares of capital stock of each class of such Principal Subsidiary or Principal Subsidiary Bank shall be owned at the time, directly or indirectly, by the Corporation or (b) pay any dividend or make any other distribution in capital stock of a Principal Subsidiary Bank or of any Principal Subsidiary, unless the Principal Subsidiary Bank to which the transaction relates, having obtained any necessary regulatory approvals, unconditionally guarantees payment of the principal of and any premium and interest on the Senior Securities. (Section 1005 of the Senior Indenture) The term "Principal Subsidiary" or "Principal Subsidiary Bank" is defined to mean any Subsidiary or Subsidiary Bank, the consolidated assets of which constitute 10% or more of the assets of the Corporation and, in the case of a Principal Subsidiary, owns shares of a Principal Subsidiary Bank. (Section 101) At the date of this Prospectus, the Subsidiary Banks which were Principal Subsidiary Banks were Wachovia Bank of North Carolina, N.A., Wachovia Bank of Georgia, N.A. and Wachovia Bank of South Carolina, N.A. There is no restriction in the Senior Indenture on the ability of a Principal Subsidiary Bank to sell assets. The Senior Indenture also prohibits the Corporation from creating, assuming, incurring or suffering to exist any mortgage, pledge, encumbrance or lien or charge of any kind upon the capital stock of a Principal Subsidiary Bank (other than directors' qualifying shares) or the capital stock of a Principal Subsidiary, except that the following liens are permitted: (i) liens for taxes that are not due, are payable without penalty or are being contested in good faith by appropriate proceedings, and (ii) liens resulting from any judgment that has not remained undischarged or unstayed for more than 60 days. (Section 1006 of the Senior Indenture) SUBORDINATION OF SUBORDINATED SECURITIES The obligations of the Corporation to make any payment on account of the principal of and premium, if any, and interest on the Subordinated Securities will be subordinate and junior in right of payment to all Senior Indebtedness of the Corporation and, in certain circumstances relating to the dissolution, winding-up, liquidation of or reorganization of the Corporation, to all Additional Senior Obligations. (Article Thirteen of the Subordinated Indenture) "Senior Indebtedness" is defined in the Subordinated Indenture to mean (a) all indebtedness of the Corporation for money borrowed, whether now outstanding or subsequently created, assumed or incurred, other than (i) the Subordinated Securities, (ii) the 7% Subordinated Notes due 1999 of the Corporation in the aggregate principal amount of $300 million (the "7% Subordinated Notes"), (iii) any obligation Ranking on a Parity with the Subordinated Securities (which includes the 6 3/8% Subordinated Notes due 2003 of the Corporation in the aggregate principal amount of $250 million and the 6 3/8% Subordinated Notes due 2009 of the Corporation in the aggregate principal amount of $250 million (collectively, the "6 3/8% Subordinated Notes"), the 6.80% Subordinated Notes due 2005 of the Corporation in the aggregate principal amount of $250 million (the "6.80% Subordinated Notes") and the 6.605% Subordinated Notes due October 1, 2025 of the Corporation in the aggregate principal amount of $250 million, the holders of which may elect to have all or a portion thereof redeemed on October 1, 2005 (the "6.605% Subordinated Notes")), or (iv) any obligation Ranking Junior to the Subordinated Securities and (b) any deferrals, renewals or extensions of any such Senior Indebtedness. The term "indebtedness of the Corporation for money borrowed" shall mean any obligation of, or any obligation guaranteed by, the Corporation for repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligations for payment of the purchase price of property or assets acquired other than in the ordinary course of business. "Additional Senior Obligations" is defined in the Indenture to mean all indebtedness of the Corporation, whether now outstanding or subsequently created, assumed or incurred, for claims in respect of derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; provided, however, that Additional Senior Obligations do not include (a) any claims in respect of Senior Indebtedness, or (b) any obligations (i) Ranking Junior to the Subordinated Securities, or (ii) Ranking on a Parity with the Subordinated Securities. For purposes of this definition, "claim" shall have the meaning assigned thereto in Section 101(4) of the United States Bankruptcy Code of 1978. The Subordinated Indenture does not limit or prohibit the incurrence of Senior Indebtedness or Additional Senior Obligations. 10 13 The term "Ranking Junior to the Subordinated Securities" is defined in the Subordinated Indenture to mean any obligation of the Corporation which (a) ranks junior to and not equally with or prior to the Subordinated Securities in right of payment upon the happening of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Corporation as a whole, whether voluntary or involuntary, and (b) is specifically designated as ranking junior to the Subordinated Securities by express provisions in the instrument creating or evidencing such obligation. The term "Ranking on a Parity with the Subordinated Securities" is defined in the Subordinated Indenture to mean any obligation of the Corporation which (a) ranks equally with and not prior to the Subordinated Securities in right of payment upon the happening of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Corporation as a whole, whether voluntary or involuntary, and (b) is specifically designated as ranking on a parity with the Subordinated Securities by express provision in the instrument creating or evidencing such obligation. (Section 101 of the Subordinated Indenture) The Subordinated Securities will be subordinate in right of payment to all Senior Indebtedness, as provided in the Subordinated Indenture. No payment on account of the principal of and premium, if any, or interest in respect of the Subordinated Securities may be made if there shall have occurred and be continuing a default in payment with respect to Senior Indebtedness or an event of default with respect to any Senior Indebtedness resulting in the acceleration of the maturity thereof. Upon any payment or distribution of assets to creditors upon any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Corporation as a whole, whether voluntary or involuntary, (a) the holders of all Senior Indebtedness will first be entitled to receive payment in full before the Holders of the Subordinated Securities will be entitled to receive any payment in respect of the principal of and premium, if any, or interest on the Subordinated Securities, and (b) if after giving effect to the operation of clause (a) above, (i) any amount of cash, property or securities remains available for payment or distribution in respect of the Subordinated Securities ("Excess Proceeds"), and (ii) creditors in respect of Additional Senior Obligations have not received payment in full of amounts due or to become due thereon or payment of such amounts has not been duly provided for, then such Excess Proceeds shall first be applied to pay or provide for the payment in full of all such Additional Senior Obligations before any payment may be made on the Subordinated Securities. If the Holders of Subordinated Securities receive payment and are aware at the time of receiving payment that all Senior Indebtedness and Additional Senior Obligations have not been paid in full, then such payment shall be held in trust for the benefit of the holders of Senior Indebtedness and/or Additional Senior Obligations, as the case maybe. (Section 1301 of the Subordinated Indenture) By reason of such subordination, in the event of insolvency, Holders of the Subordinated Securities may recover less, ratably, than holders of Senior Indebtedness and holders of Additional Senior Obligations. Neither the Subordinated Securities (and the 6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, which Rank on a Parity with the Subordinated Securities) nor the 7% Subordinated Notes are by their term subordinate or senior to the other. However, the 7% Subordinated Notes by their terms are subordinated to Senior Indebtedness and Additional Senior Obligations and to all other obligations of the Corporation to its creditors (subject to certain exceptions specified in the indenture pursuant to which the 7% Subordinated Notes are outstanding). As a result of the differences between the subordination provisions applicable to the Subordinated Securities and the 6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, and those applicable to the 7% Subordinated Notes, in the event of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding up of or relating to the Corporation, the holders of the Subordinated Securities and the 6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, may receive more, ratably, than the holders of the 7% Subordinated Notes. 11 14 EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION FOR SUBORDINATED SECURITIES The Indentures (each with respect to any series of Securities) define an "Event of Default" as any one of the following events (whatever the reason and whether it be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body or, with respect to the Subordinated Securities, whether it be occasioned by the subordination provisions of the Subordinated Indenture): (a) failure to pay any interest on any Security of that series when due and payable, continued for 30 days (in the case of Subordinated Securities, whether or not such payment is prohibited by the subordination provisions of the Subordinated Indenture); (b) failure to pay principal of or any premium on any Security of that series when due; (c) failure to deposit any sinking fund payment, when due, in respect of any Security of that series (in the case of Subordinated Securities, whether or not such payment is prohibited by the subordination provisions of the Subordinated Indenture); (d) failure to perform any other covenants or warranties of the Corporation in the Applicable Indenture (other than a covenant included in the Applicable Indenture solely for the benefit of a series of Securities thereunder other than that series) continued for 60 days after written notice as provided in the Applicable Indenture; (e) the entry of a decree or order for relief in respect of the Corporation by a court having jurisdiction in the premises in an involuntary case under Federal or state bankruptcy laws and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; (f) the commencement by the Corporation of a voluntary case under Federal or state bankruptcy laws or the consent by the Corporation to the entry of a decree or order for relief in an involuntary case under any such law; (g) with respect to Senior Securities only, unless otherwise provided in the Applicable Prospectus Supplement, failure to pay when due or acceleration of Securities or any other indebtedness for borrowed money, in an aggregate principal amount exceeding $50,000,000, of the Corporation, a Principal Subsidiary or a Principal Subsidiary Bank under the terms of the instrument or instruments under which such indebtedness is issued or secured, unless such acceleration is annulled, or such indebtedness is discharged, or there is deposited in trust a sum of money sufficient to discharge such indebtedness, within 10 days after written notice as provided in the Senior Indenture; and (h) any other Event of Default provided with respect to Securities of that series. (Section 501) Acceleration of Senior Securities. If an Event of Default with respect to the Senior Securities of any series at the time Outstanding occurs and is continuing, either the Senior Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Senior Securities of that series may declare the principal amount (or, if the Senior Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms thereof) of all the Senior Securities of that series to be due and payable immediately. At any time after a declaration of acceleration with respect to Senior Securities of any series has been made, but before a judgment or decree based on acceleration has been obtained, the Holders of a majority in aggregate principal amount of Outstanding Senior Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502 of the Senior Indenture) Acceleration of Subordinated Securities. Unless specifically stated in the Applicable Prospectus Supplement for a particular series of Subordinated Securities, the payment of the principal of the Subordinated Securities may be accelerated only upon the occurrence of an Event of Default described in clause (e) or clause (f) of the first paragraph of this section (a "Bankruptcy Event of Default") and there is no right of acceleration of the payment of principal of the Subordinated Securities of such series upon a default in the payment of principal, premium, if any, or interest, if any, or in the performance of any covenant or agreement in the Subordinated Securities or Subordinated Indenture. If a Bankruptcy Event of Default with respect to the Subordinated Securities of any series at the time Outstanding occurs and is continuing, either the Subordinated Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Subordinated Securities of that series may declare the principal amount (or, if the Subordinated Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms thereof) of all the Subordinated Securities of that series to be due and payable immediately. At any time after a declaration of acceleration with respect to Subordinated Securities of any series has been made, but before a judgment or decree based on acceleration 12 15 has been obtained, the Holders of a majority in aggregate principal amount of Outstanding Subordinated Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502 of the Subordinated Indenture) General. In the event of a default in the payment of principal, premium, if any, or interest, if any, or the performance of any covenant or agreement in the Securities or the Indentures, the Applicable Trustee, subject to certain limitations and conditions, may institute judicial proceedings to enforce payment of such principal, premium, if any, or interest, if any, or to obtain the performance of such covenant or agreement or any other proper remedy. (Section 503) Under certain circumstances, the Applicable Trustee may withhold notice to the Holders of the Securities in a default if the Applicable Trustee in good faith determines that the withholding of such notice is in the best interest of such Holders, and the Applicable Trustee shall withhold such notice for certain defaults for a period of 30 days. (Section 602) Reference is made to the Prospectus Supplement relating to any series of Offered Securities that are Original Issue Discount Securities for the particular provisions relating to acceleration of the Stated Maturity of a portion of the principal amount of such series of Original Issue Discount Securities upon the occurrence of an Event of Default and the continuation thereof. The Indentures provide that, subject to the duty of the Applicable Trustee during default to act with the required standard of care, the Applicable Trustee will be under no obligation to exercise any of its rights or powers under the Applicable Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Applicable Trustee reasonable security or indemnity. (Section 603) Subject to such provisions for the indemnification of the Applicable Trustee and to certain other conditions, the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Applicable Trustee, or exercising any trust or power conferred on the Applicable Trustee, with respect to the Securities of that series. (Section 512) No Holder of any series of Securities will have any right to institute any proceeding with respect to the Applicable Indenture, or for the appointment of a receiver or trustee or for any remedy thereunder, unless such Holder shall have previously given to the Applicable Trustee written notice of a continuing Event of Default and unless the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series shall have made written request, and offered reasonable indemnity, to the Applicable Trustee to institute such proceeding as trustee, and such Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. (Section 507) However, such limitations do not apply to a suit instituted by a Holder of a Security for enforcement of payment of the principal of and premium, if any, or interest on such Security on or after the respective due dates expressed in such Security. (Section 508) The Corporation is required to furnish to each Trustee annually a statement as to the performance by the Corporation of certain of its obligations under the Applicable Indenture and as to any default in such performance. (Section 1007 of the Senior Indenture; Section 1005 of the Subordinated Indenture) MODIFICATION AND WAIVER Modification and amendment of the Indentures may be made by the Corporation and the Applicable Trustee with the consent of the Holders of not less than a 66 2/3% in aggregate principal amount of the Outstanding Securities of each series issued under the Applicable Indenture and affected by the modification or amendment; provided, however, that no such modification or amendment may, without the consent of the Holders of each Outstanding Security of the series affected thereby (a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security of such series; (b) reduce the principal amount of or premium, if any, or interest on, any Security of any series (including in the case of an Original Issue Discount Security the amount payable upon acceleration of the maturity thereof); (c) change the place or currency of payment of principal of or the premium, if any, or interest on any Security of such series; (d) impair the right to institute suit for the enforcement of any payment on any Security of such series on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); 13 16 (e) in the case of Subordinated Securities, modify the subordination provisions in a manner adverse to the Holders of the Subordinated Securities of such series; or (f) reduce the percentage in principal amount of Outstanding Securities of any series, the consent of whose Holders is required for modification or amendment of the Applicable Indenture or for waiver of compliance with certain provisions of the Applicable Indenture or for waiver of certain defaults. (Section 902) The Holders of at least a 66 2/3% in aggregate principal amount of the Outstanding Securities of any series may, on behalf of all Holders of that series of Securities, waive compliance by the Corporation with certain restrictive provisions of the Applicable Indenture. (Section 1008 of the Senior Indenture; Section 1006 of the Subordinated Indenture) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may, on behalf of all Holders of that series of Securities, waive any past default under the Applicable Indenture, except a default in the payment of principal, premium, if any, or interest and in respect of certain covenants. (Section 513) CONSOLIDATION, MERGER AND SALE OF ASSETS Under the Indentures, the Corporation may not consolidate with or merge into any other corporation or sell, convey, exchange, transfer or lease its properties and assets substantially as an entirety to any Person, unless (a) any successor or purchaser is a corporation organized under the laws of any domestic jurisdiction; (b) any such successor or purchaser expressly assumes the Corporation's obligations on such Securities and under the Indentures; (c) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (d) certain other conditions are met. (Section 801) ASSUMPTION BY SUBSIDIARY A Subsidiary may assume the Corporation's obligations under the Senior Indenture or the Subordinated Indenture (including the Corporation's obligation to pay principal of and premium, if any, and interest on the Securities, but excluding the Corporation's obligation to comply with certain covenants) provided that (a) such Subsidiary expressly assumes the Corporation's obligations under the Applicable Indenture; (b) the Corporation guarantees such Subsidiary's obligations; (c) such Subsidiary agrees to indemnify each Holder against certain taxes and expenses relating to, or incurred directly in connection with, such assumption; (d) immediately after giving effect to the assumption, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; (e) certain Opinions of Counsel and Officers' Certificates are delivered to the Applicable Trustee; and (f) certain other obligations are met. (Section 803) TRUSTEES The Senior Trustee. The Chase Manhattan Bank is the Senior Trustee under the Senior Indenture. The Chase Manhattan Bank maintains a deposit account and conducts other banking transactions with the Corporation and its subsidiaries in the ordinary course of business. The Senior Indenture provides for the indemnification of the Senior Trustee by the Corporation under certain circumstances. The Subordinated Trustee. Mellon Bank, N.A. is the Subordinated Trustee under the Subordinated Indenture. Mellon Bank, N.A. maintains a deposit account and conducts other banking transactions with the Corporation and its subsidiaries in the ordinary course of business, serves as trustee under the indenture pursuant to which the 7% Subordinated Notes are outstanding and serves as trustee with respect to the 6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, which are outstanding pursuant to the Subordinated Indenture. The Subordinated Indenture provides for the indemnification of the Subordinated Trustee by the Corporation under certain circumstances. 14 17 PLAN OF DISTRIBUTION The Corporation may offer and sell Securities to or through underwriters, acting as principals for their own accounts or as agents, and also may offer and sell Securities directly to other purchasers. Any underwriters or agents in connection with Offered Securities will be named in the related Prospectus Supplement and any underwriting compensation paid to such underwriters or agents will be set forth therein. Such underwriters may include a single firm or may be a group of underwriters represented by such firm. Unless otherwise indicated in the Prospectus Supplement, any underwriters will be required to purchase all of the Offered Securities if any are purchased. The distribution of Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. In connection with the sale of Securities, underwriters may receive compensation from the Corporation and from purchasers of Securities for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters, dealers and agents that participate in the distribution of Securities may be deemed to be underwriters and any discounts or commissions received by them and any profit on the resale of Securities by them may be deemed to be underwriting discounts and commissions under the Securities Act. Under agreements which may be entered into with the Corporation, underwriters, dealers and agents who participate in the distribution of the Offered Securities may be entitled to indemnification by the Corporation against certain liabilities, including liabilities under the Securities Act, or contribution with respect to payments which the underwriters, dealers or agents may be required to make in respect thereof. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for the Corporation and its subsidiaries in the ordinary course of business. If so indicated in the Prospectus Supplement, the Corporation will authorize dealers or other persons acting as the Corporation's agents to solicit offers by certain institutions to purchase Offered Securities from the Corporation pursuant to delayed delivery contracts ("Contracts") providing for payment and delivery on a future date or dates stated in the Prospectus Supplement. Each Contract will be for an amount not less than, and the aggregate amount of Offered Securities sold pursuant to Contracts shall not be less than nor more than, the respective amounts stated in the Prospectus Supplement. Institutions with which Contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such institutions must be approved by the Corporation. The obligations of any purchaser under any Contract will not be subject to any conditions except that (a) the purchase of the Offered Securities shall not at the time of delivery be prohibited under the laws of any jurisdiction to which such purchaser is subject, and (b) if the Offered Securities are also being sold to underwriters, the Corporation will have sold to such underwriters the Offered Securities not sold for delayed delivery. The dealers and such other persons acting as agents of the Corporation will not have any responsibility in respect of the validity or performance of Contracts. EXPERTS The consolidated financial statements of Wachovia Corporation and subsidiaries at December 31, 1995 and 1994, and for each of the three years in the period ended December 31, 1995, incorporated by reference in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent auditors, as set forth in its report thereon and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. 15 18 LEGAL MATTERS The validity of the Offered Securities will be passed upon for the Corporation by Kenneth W. McAllister, General Counsel of the Corporation, and for any underwriters or agents by King & Spalding, Atlanta, Georgia. As to matters of Pennsylvania law, Mr. McAllister and King & Spalding will rely on the opinion of Drinker Biddle & Reath, Philadelphia, Pennsylvania. From time to time, King & Spalding has provided and may in the future provide legal services to the Corporation and its subsidiaries. 16 19 ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. --------------------- TABLE OF CONTENTS
PAGE ---- Available Information.................. 2 Incorporation of Certain Documents by Reference............................ 2 Wachovia Corporation................... 2 Certain Regulatory Considerations...... 3 Consolidated Ratio of Earnings to Fixed Charges.............................. 6 Use of Proceeds........................ 6 Description of Securities.............. 6 Plan of Distribution................... 15 Experts................................ 15 Legal Matters.......................... 16
WACHOVIA CORPORATION SENIOR DEBT SECURITIES SUBORDINATED DEBT SECURITIES -------------------- PROSPECTUS -------------------- ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ 20 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Estimated expenses in connection with the issuance and distribution of the Securities being registered, other than underwriting compensation, are as follows: Securities and Exchange Commission registration fee....................... $384,828 Blue Sky fees and expenses................................................ 20,000 Attorney's fees and expenses.............................................. 40,000 Accounting services....................................................... 20,000 Printing and engraving.................................................... 60,000 Fees of indenture trustee................................................. 64,000 Rating agency fees........................................................ 80,000 Miscellaneous............................................................. 15,000 -------- Total..................................................................... $683,828 ========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS. As permitted by the North Carolina Business Corporation Act (the "NCBCA"), the Corporation's Articles of Incorporation provide that no director of the Corporation will be held personally liable for monetary damages for such director's breach of duty as a director. This limitation of liability does not relieve directors from liability for (i) acts or omissions that the director at the time of such breach knew or believed were clearly in conflict with the best interests of the Corporation, (ii) any liability under Section 55-8-33 of the NCBCA for unlawful distributions or other acts for which the director is personally liable to the Corporation, (iii) any transaction from which the director is adjudged to have derived an improper personal benefit, or (iv) acts or omissions occurring prior to the date the provision in the Articles of Incorporation became effective. Pursuant to the North Carolina Business Corporation Act (the "NCBCA"), Sections 55-8-50, et seq., as amended, a director may be indemnified against liability and litigation expense, including reasonable attorneys' fees, arising out of his status as such or his activities in such capacity, provided, however, that such person (i) conducted himself in good faith; (ii) reasonably believed (x) in the case of conduct in his official capacity with the Corporation, that his conduct was in its best interests, and (y) in all other cases that his conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, had no reason to believe his conduct was unlawful. Mandatory indemnification is available under the NCBCA for a director who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the Corporation, against reasonable expenses incurred by him in connection with the proceeding. A corporation may not indemnify under the NCBCA in connection with any proceeding by or in the right of a corporation in which the director was adjudged liable to the corporation, or with any other proceeding charging improper personal benefit to him, whether or not in connection with his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Where a proceeding is by or in the right of a corporation, indemnification of a director is limited to reasonable expenses if the proceeding is concluded without a final adjudication on the issue of liability. The NCBCA provides for an advance for expenses incurred by a director in defending a proceeding. The expenses may be paid by a corporation in advance of the final disposition of such proceeding as authorized by the board of directors in specific cases or as authorized or required under any provision in the articles of incorporation or bylaws or by any applicable resolution or contract upon receipt of an undertaking by or on behalf of the director to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation against such expenses. II-1 21 ITEM 16. EXHIBITS. (1) -- Form of Underwriting Agreement. (3)(a) -- Amended and Restated Articles of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1993. (3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1993. (4)(a) -- Indenture dated as of August 15, 1996 between the Corporation and The Chase Manhattan Bank, as Trustee, relating to the Senior Securities. (4)(b) -- Indenture dated as of March 1, 1993 between the Corporation and CoreStates Bank, National Association, as Trustee, relating to the Subordinated Securities, incorporated by reference to Exhibits 4(a) to the Corporation's Registration Statement on Form S-3 (Registration No. 33-59206). (5)(a) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to the legality of the Senior Securities. *(5)(b) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to the legality of the Subordinated Securities. (12) -- Statement setting forth computation of ratios of earnings to fixed charges. (23)(a) -- Consent of Ernst & Young LLP. (23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the Corporation (included in Exhibits 5(a) and 5(b)). (24)(a) -- Powers of Attorney of Directors and Officers of the Corporation. *(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to sign the Registration Statement (File No. 333-6319) on behalf of the Corporation by power of attorney. 24(c) -- Copy of the Corporation's resolutions authorizing its officers to sign the Registration Statement (File No. 33-6280) on behalf of the Corporation by power of attorney. (25)(a) -- Statement of eligibility of the Trustee on Form T-1 with respect to the Senior Securities. *(25)(b) -- Statement of eligibility of the Trustee on Form T-1 with respect to the Subordinated Securities.
- --------------- * Previously filed. ITEM 17. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed II-2 22 with or provided to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of the Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the Registration Statement as of the time it was declared effective. (2) For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-3 23 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to its Registration Statement on Form S-3 (File No. 333-6319) to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Winston-Salem, State of North Carolina, on August 13, 1996. WACHOVIA CORPORATION By: /s/ L. M. BAKER, JR. ------------------------------------ L. M. Baker, Jr. President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment has been signed below by the following persons on behalf of the registrant and in the capacities indicated, on August 13, 1996.
SIGNATURE CAPACITY - --------------------------------------------- ------------------------------ /s/ L. M. BAKER, JR. President, Chief Executive - --------------------------------------------- Officer and Director L. M. Baker, Jr. (Principal Executive Officer) /s/ JOHN G. MEDLIN, JR. Chairman and Director - --------------------------------------------- John G. Medlin, Jr. RUFUS C. BARKLEY, JR.* Director - --------------------------------------------- Rufus C. Barkley, Jr. Director - --------------------------------------------- Crandall C. Bowles JOHN L. CLENDENIN* Director - --------------------------------------------- John L. Clendenin LAWRENCE M. GRESSETTE, JR.* Director - --------------------------------------------- Lawrence M. Gressette, Jr. THOMAS K. HEARN, JR.* Director - --------------------------------------------- Thomas K. Hearn, Jr. W. HAYNE HIPP* Director - --------------------------------------------- W. Hayne Hipp ROBERT M. HOLDER, JR.* Director - --------------------------------------------- Robert M. Holder, Jr. DONALD R. HUGHES* Director - --------------------------------------------- Donald R. Hughes JAMES W. JOHNSTON* Director - --------------------------------------------- James W. Johnston
II-4 24
SIGNATURE CAPACITY - --------------------------------------------- ------------------------------ Director - --------------------------------------------- Wyndham Robertson HERMAN J. RUSSELL* Director - --------------------------------------------- Herman J. Russell SHERWOOD H. SMITH, JR.* Director - --------------------------------------------- Sherwood H. Smith, Jr. CHARLES McKENZIE TAYLOR* Director - --------------------------------------------- Charles McKenzie Taylor JOHN C. WHITAKER, JR.* Director - --------------------------------------------- John C. Whitaker, Jr. ROBERT S. McCOY, JR.* Executive Vice President and - --------------------------------------------- Chief Financial Officer Robert S. McCoy, Jr. (Principal Financial Officer) DONALD K. TRUSLOW* Comptroller (Principal - --------------------------------------------- Accounting Officer) Donald K. Truslow *By: /s/ ALICE WASHINGTON GROGAN ----------------------------------------- Alice Washington Grogan Attorney-in-Fact
II-5 25 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to its Registration Statement on Form S-3 (File No. 33-6280) to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Winston-Salem, State of North Carolina, on August 13, 1996. WACHOVIA CORPORATION By: /s/ L. M. BAKER, JR. ------------------------------------ L. M. Baker, Jr. President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment has been signed below by the following persons on behalf of the registrant and in the capacities indicated, on August 13, 1996.
SIGNATURE CAPACITY - --------------------------------------------- ------------------------------ /s/ L. M. BAKER, JR. President, Chief Executive - --------------------------------------------- Officer and Director L. M. Baker, Jr. (Principal Executive Officer) /s/ JOHN G. MEDLIN, JR. Chairman and Director - --------------------------------------------- John G. Medlin, Jr. RUFUS C. BARKLEY, JR.* Director - --------------------------------------------- Rufus C. Barkley, Jr. Director - --------------------------------------------- Crandall C. Bowles JOHN L. CLENDENIN* Director - --------------------------------------------- John L. Clendenin LAWRENCE M. GRESSETTE, JR.* Director - --------------------------------------------- Lawrence M. Gressette, Jr. THOMAS K. HEARN, JR.* Director - --------------------------------------------- Thomas K. Hearn, Jr. W. HAYNE HIPP Director - --------------------------------------------- W. Hayne Hipp ROBERT M. HOLDER, JR.* Director - --------------------------------------------- Robert M. Holder, Jr. DONALD R. HUGHES* Director - --------------------------------------------- Donald R. Hughes JAMES W. JOHNSTON* Director - --------------------------------------------- James W. Johnston
II-6 26
SIGNATURE CAPACITY - --------------------------------------------- ------------------------------ Director - --------------------------------------------- Wyndham Robertson HERMAN J. RUSSELL* Director - --------------------------------------------- Herman J. Russell SHERWOOD H. SMITH, JR.* Director - --------------------------------------------- Sherwood H. Smith, Jr. CHARLES McKENZIE TAYLOR* Director - --------------------------------------------- Charles McKenzie Taylor JOHN C. WHITAKER, JR.* Director - --------------------------------------------- John C. Whitaker, Jr. ROBERT S. McCOY, JR.* Executive Vice President and - --------------------------------------------- Chief Financial Officer Robert S. McCoy, Jr. (Principal Financial Officer) DONALD K. TRUSLOW* Comptroller (Principal - --------------------------------------------- Accounting Officer) Donald K. Truslow By: /s/ ALICE WASHINGTON GROGAN ----------------------------------------- Alice Washington Grogan Attorney-in-Fact
II-7 27 EXHIBIT INDEX
EXHIBIT SEQUENTIAL NO. PAGE NO. - --------- ----------- (1) -- Form of Underwriting Agreement.................................... (3)(a) -- Amended and Restated Articles of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1993.............................................................. (3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1993...................................... (4)(a) -- Indenture dated as of August 15, 1996 between the Corporation and The Chase Manhattan Bank, as Trustee, relating to the Senior Securities........................................................ (4)(b) -- Indenture dated as of March 1, 1993 between the Corporation and CoreStates Bank, National Association, as Trustee, relating to the Subordinated Securities, incorporated by reference to Exhibit 4(a) to the Corporation's Registration Statement on Form S-3 (Registration No. 33-59206)....................................... (5)(a) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to the legality of the Senior Securities.......... *(5)(b) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to the legality of the Subordinated Securities.... (12) -- Statement setting forth computation of the ratio of earnings to fixed charges..................................................... (23)(a) -- Consent of Ernst & Young LLP...................................... (23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the Corporation (included in Exhibits 5(a) and 5(b)).................. (24)(a) -- Powers of Attorney of Directors and Officers of the Corporation... *(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to sign the Registration Statement (File No. 333-6319) on behalf of the Corporation by power of attorney.............................. 24(c) -- Copy of the Corporation's resolutions authorizing its officers to sign the Registration Statement (File No. 33-6280) on behalf of the Corporation by power of attorney.............................. (25)(a) -- Statement of eligibility of the Trustee on Form T-1 with respect to the Senior Securities.......................................... *(25)(b) -- Statement of eligibility of the Trustee on Form T-1 with respect to the Subordinated Securities....................................
- --------------- * Previously filed. EX-1 2 UNDERWRITING AGREEMENT 1 EXHIBIT 1 WACHOVIA CORPORATION --------------------- UNDERWRITING AGREEMENT New York, New York To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto Dear Sirs: Wachovia Corporation, a North Carolina corporation (the "Company"), proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), the principal amount of its debt securities identified in Schedule I hereto (the "Securities"), to be issued under an indenture identified in Schedule I hereto (the "Indenture"), between the Company and the trustee identified in Schedule I hereto (the "Trustee"). If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms. 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof. (a) If the offering of the Securities is a Delayed Offering (as specified in Schedule I hereto), paragraph (i) below is applicable and, if the offering of the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable. (i) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933 (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used a Preliminary Final Prospectus, each of which has previously been furnished to you. Such registration statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, although the Basic Prospectus may not include all the information with respect to the Securities and the offering thereof required by the Act and the rules thereunder to be included in the Final Prospectus, the Basic Prospectus includes all such information required by the Act and the rules thereunder to be included therein as of the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of prospectus included in such registration statement relating to the Securities and the offering thereof. As filed, such final prospectus supplement shall include all required information with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (ii) The Company meets the requirements for the use of Form S-3 under the Act and has filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including a 2 Preliminary Final Prospectus, each of which has previously been furnished to you. The Company will next file with the Commission either (x) a final prospectus supplement relating to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of such registration statement, an amendment to such registration statement, including the form of final prospectus supplement. In the case of clause (x), the Company has included in such Registration Statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. As filed, such final prospectus supplement or such amendment and form of final prospectus supplement shall contain all Rule 430A Information, together with all other such required information, with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time, or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (b) On the Effective Date, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder; on the Effective Date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules thereunder; and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which constitutes or shall constitute the Statement of Eligibility and Qualification ("Form T-1") under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto). (c) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective and each date after the date hereof on which a document incorporated by reference in the Registration Statement is filed. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph (a) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto becomes effective prior to the 2 3 Closing Date (as hereinafter defined), shall also mean such registration statement as so amended. Such term shall include any Rule 430A Information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or regulation under the Act. "Rule 430A Information" means information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. A "Non-Delayed Offering" shall mean an offering of securities which is intended to commence promptly after the effective date of a registration statement, with the result that, pursuant to Rules 415 and 430A, all information (other than Rule 430A Information) with respect to the securities so offered must be included in such registration statement at the effective date thereof. A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of a registration statement, with the result that only information required pursuant to Rule 415 need be included in such registration statement at the effective date thereof with respect to the securities so offered. Whether the offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I hereto. 2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be as set forth in Schedule II hereto less the respective amounts of Contract Securities determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called "Contract Securities". (b) If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to purchase Securities from the Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the form of Schedule III hereto but with such changes therein as the Company may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto of the principal amount of the Securities for which Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The Company will enter into Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Company but, except as the Company may otherwise agree, each such Delayed Delivery Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction 3 4 shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto less the aggregate principal amount of Contract Securities. 3. Delivery and Payment. Delivery of and payment for the Underwriters' Securities shall be made on the date and at the time specified in Schedule I hereto (or such later date not later than five business days after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Underwriters' Securities being herein called the "Closing Date"). Delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in next day funds. Delivery of the Underwriters' Securities shall be made at such location as the Representatives shall reasonably designate at least one business day in advance of the Closing Date and payment for the Securities shall be made at the office specified in Schedule I hereto. Certificates for the Underwriters' Securities shall be registered in such names and in such denominations as the Representatives may request not less than three full business days in advance of the Closing Date. The Company agrees to have the Underwriters' Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than 1:00 p.m. on the business day prior to the Closing Date. 4. Agreements. The Company agrees with the several Underwriters that: (a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an 4 5 amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemental Prospectus to you in such quantities as you may reasonably request. (c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering. (e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors. (f) Until the business day following the Closing Date, the Company will not, without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any debt securities covered by the Registration Statement or any other registration statement filed under the Act. 5. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwriters' Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 p.m. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Representatives the opinion of Kenneth W. McAllister, General Counsel for the Company, or of other counsel for the Company satisfactory to the Representatives, dated the Closing Date, to the effect that: (i) the Company and each of South Carolina National Corporation, Wachovia Bank of North Carolina, N.A., Wachovia Bank of Georgia, N.A. and Wachovia Bank of South Carolina, N.A., (individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated or organized and is validly existing as a corporation or banking association in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business; and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; (ii) all outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the 5 6 Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances; (iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on any securities exchange or automated quotation system, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such securities exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution; (iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to rights of acceleration and the enforcement or remedies to general principles of equity); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to rights of acceleration and the enforcement of remedies to general principles of equity); (v) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters in all material respects; (vi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein and the Statement of Eligibility and Qualification of the Trustee as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vii) this Agreement has been duly authorized, executed and delivered by the Company; 6 7 (viii) any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and, as to rights of acceleration and the enforcement of remedies to general principles of equity); (ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; (x) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, result in a breach or violation of, or constitute a default under any law or the articles of incorporation or by-laws of the Company or the terms of any indenture, contract or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound and which is material to the Company, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; and (xi) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. (c) The Representatives shall have received from King & Spalding, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President of the Company and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and 7 8 (iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto). (e) At the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and that they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information in accordance with, and as described in, Statement of Accounting Standards No. 71 for the latest unaudited financial statements in or incorporated in the Registration Statement or the Final Prospectus and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and any pro forma financial statement of the Company and its subsidiaries included or incorporated in the Registration Statement and the Final Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants under Statement of Accounting Standards No. 71 of the unaudited interim financial information of the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, the board of directors and the executive, finance, audit, pension and compensation committees of the board of directors of the Company and of certain of the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Final Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; or (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, in or incorporated in the Registration Statement and the Final Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the long-term debt (including capital lease obligations) of the Company and its subsidiaries or capital stock of the Company (other than issuances of capital stock upon exercise of options and stock appreciation plans which were outstanding on the date of the latest consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus) or decreases in the shareholders' equity of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final 8 9 Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Final Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net interest income, net interest income after provision for loan losses or in income before income taxes, or in the total or per-share amount of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; or (4) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. In addition, except as provided in Schedule I hereto, at the Execution Time, Ernst & Young LLP shall have furnished to the Representatives a letter or letters, dated as of the Execution Time, in form and substance satisfactory to the Representatives, to the effect set forth above. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto). (g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company's debt securities by Moody's Investors Service, Inc. or Standard & Poor's Corporation. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. 9 10 (i) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. 6. Reimbursement of Underwriters' Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 7. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Final Prospectus (or the Final Prospectus as supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page, under the heading "Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for sales of Securities pursuant to 10 11 delayed delivery arrangements, in the last sentence under the heading "Delayed Delivery Arrangements" in any Preliminary Final Prospectus or the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to appoint counsel satisfactory to such indemnified party to represent the indemnified party in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to appoint counsel to defend such action and approval by the indemnified party of such counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party shall not be liable for any settlement of any action or claim effected without its consent. (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on grounds of policy or otherwise, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and the purchase price of the Securities specified in Schedule I hereto and the Company is responsible for the balance; provided, however, that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clause (z) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties 11 12 shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). 8. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. 9. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal, Georgia, North Carolina, South Carolina or New York State authorities or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market the Securities. 10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancellation of this Agreement. 11. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telegraphed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 301 North Main Street, Winston Salem, North Carolina 27150, attention of Kenneth W. McAllister. 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflicts of laws. 12 13 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, WACHOVIA CORPORATION By: --------------------------------- Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. [Name of Representatives] By: By: ---------------------------------- Name: Title: For themselves and as Representatives of the other several Underwriters, if any, named in Schedule II hereto. 13 14 SCHEDULE I Underwriting Agreement dated Registration Statement No. 33- Representative(s): Title, Purchase Price and Description of Securities: Title: Principal amount: Purchase price (include accrued interest or amortization, if any): Sinking fund provisions: Redemption provisions: Indenture/trustee: Other provisions: Closing Date, Time and Location: Closing Date: Time: Location: Type of Offering: Payment of Funds: Delayed Delivery Arrangements: Fee: Minimum principal amount of each contract: Maximum aggregate principal amount of all contracts: Modification of items to be covered by the letter from Ernst & Young LLP delivered pursuant to Section 5(e) at the Execution Time: S-1 15 SCHEDULE II
PRINCIPAL AMOUNT OF SECURITIES TO UNDERWRITERS BE PURCHASED - ----------------------------------------------------------------------------- ---------------- ---------------- Total.............................................................. =============
S-2 16 SCHEDULE III DELAYED DELIVERY CONTRACT [Date] [Insert name and address of lead Representative] Dear Sirs: The undersigned hereby agrees to purchase from Wachovia Corporation (the "Company"), and the Company agrees to sell to the undersigned, on , 19 , (the "Delivery Date"), $ principal amount of the Company's (the "Securities") offered by the Company's Prospectus dated , 19 , and related Prospectus Supplement dated , 19 , receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof, plus [accrued interest] [amortization of original issue discount], if any, thereon from , 19 , to the date of payment and delivery, and on the further terms and conditions set forth in this contract. Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 a.m., New York City time, on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned, upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date. The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date, and the obligation of the Company to sell and deliver Securities on the Delivery Date, shall be subject to the conditions (and neither party shall incur any liability by reason of the failure thereof) that (1) the purchase of Securities to be made by the undersigned, which purchase the undersigned represents is not prohibited on the date hereof, shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject, and (2) the Company, on or before the Delivery Date, shall have sold to certain underwriters (the "Underwriters") such principal amount of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Prospectus and Prospectus Supplement mentioned above. Promptly after completion of such sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities, and the obligation of the Company to cause the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered. S-3 17 This agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, -------------------------------------- (Name of Purchaser) By: ------------------------------------ (Signature and Title of Officer) -------------------------------------- (Address) Accepted: Wachovia Corporation By: -------------------------------- (Authorized Signature) S-4 EX-4.A 3 INDENTURE 1 EXHIBIT 4(A) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- WACHOVIA CORPORATION TO THE CHASE MANHATTAN BANK, TRUSTEE ------------------------ INDENTURE DATED AS OF AUGUST 15, 1996 ------------------------ - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 WACHOVIA CORPORATION RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE DATED AS OF AUGUST 15, 1996
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, 512 (a)(1)(B)........................ 513 (a)(2)........................... Not Applicable (b).............................. 508 Section 317(a)(1)............................ 503 (a)(2)........................... 504 (b).............................. 1003 Section 318(a)............................... 107
- --------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. 3 i TABLE OF CONTENTS
PAGE ---- Parties....................................... 1 Recitals of the Company....................... 1 ARTICLE ONE Definitions and Other Provisions of General Application Section 101. Definitions:.................................. 1 Act........................................... 2 Affiliate; control............................ 2 Authenticating Agent.......................... 2 Board of Directors............................ 2 Board Resolution.............................. 2 Book-Entry Security........................... 2 Business Day.................................. 2 Commission.................................... 3 Company....................................... 3 Company Request; Company Order................ 3 Corporate Trust Office........................ 3 corporation................................... 3 Defaulted Interest............................ 3 Depositary.................................... 3 Event of Default.............................. 3 Holder........................................ 4 Indenture..................................... 4 interest...................................... 4 Interest Payment Date......................... 4 Maturity...................................... 4 Officers' Certificate......................... 4 Opinion of Counsel............................ 4 Original Issue Discount Security.............. 4 Outstanding................................... 4 Paying Agent.................................. 6 Person........................................ 6 Place of Payment.............................. 6
- --------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. 4 ii
PAGE ---- Predecessor Security.......................... 6 Primary Federal Regulator..................... 6 Principal Subsidiary; Principal Subsidiary Bank.......................................... 6 Redemption Date............................... 6 Redemption Price.............................. 6 Regular Record Date........................... 7 Responsible Officer........................... 7 Securities.................................... 7 Security Register; Security Registrar; Co-Security Registrar....................... 7 Special Record Date........................... 7 Stated Maturity............................... 7 Subsidiary; Subsidiary Bank................... 7 Trustee....................................... 7 Trust Indenture Act........................... 7 Vice President................................ 8 Voting Stock.................................. 8 Section 102. Compliance Certificates and Opinions.......... 8 Section 103. Form of Documents Delivered to Trustee........ 9 Section 104. Acts of Holders............................... 9 Section 105. Notices, Etc., to Trustee and Company......... 10 Section 106. Notice to Holders; Waiver..................... 10 Section 107. Conflict With Trust Indenture Act............. 11 Section 108. Effect of Headings and Table of Contents...... 11 Section 109. Successors and Assigns........................ 11 Section 110. Separability Clause........................... 11 Section 111. Benefits of Indenture......................... 11 Section 112. Governing Law................................. 12 Section 113. Legal Holidays................................ 12 ARTICLE TWO Security Forms Section 201. Forms Generally............................... 12 Section 202. Form of Face of Security...................... 13 Section 203. Form of Reverse of Security................... 16 Section 204. Form of Trustee's Certificate of Authentication.............................. 20 Section 205. Issuance of Book-Entry Securities............. 20
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PAGE ---- ARTICLE THREE The Securities Section 301. Amount Unlimited; Issuable in Series.......... 21 Section 302. Denominations................................. 23 Section 303. Execution, Authentication, Delivery and Dating...................................... 23 Section 304. Temporary Securities.......................... 25 Section 305. Registration, Registration of Transfer and Exchange................................ 25 Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................................. 28 Section 307. Payment of Interest; Interest Rights Preserved................................... 29 Section 308. Persons Deemed Owners......................... 31 Section 309. Cancellation.................................. 31 Section 310. Computation of Interest....................... 31 Section 311. Regarding Beneficial Ownership Interests in Book-Entry Securities....................... 31 ARTICLE FOUR Satisfaction and Discharge Section 401. Satisfaction and Discharge of Indenture....... 32 Section 402. Application of Trust Money.................... 33 ARTICLE FIVE Remedies Section 501. Events of Default............................. 33 Section 502. Acceleration of Maturity; Rescission and Annulment............................... 35 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................. 36 Section 504. Trustee May File Proofs of Claim.............. 37 Section 505. Trustee May Enforce Claims Without Possession of Securities.................... 38 Section 506. Application of Money Collected................ 38 Section 507. Limitation on Suits........................... 39 Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest............. 39 Section 509. Restoration of Rights and Remedies............ 40 Section 510. Rights and Remedies Cumulative................ 40 Section 511. Delay or Omission Not Waiver.................. 40 Section 512. Control by Holders............................ 40
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PAGE ---- Section 513. Waiver of Past Defaults....................... 41 Section 514. Undertaking for Costs......................... 41 Section 515. Waiver of Stay or Extension Laws.............. 42 ARTICLE SIX The Trustee Section 601. Certain Duties and Responsibilities........... 42 Section 602. Notice of Defaults............................ 43 Section 603. Certain Rights of Trustee..................... 44 Section 604. Not Responsible for Recitals or Issuance of Securities...................... 45 Section 605. May Hold Securities........................... 45 Section 606. Money Held in Trust........................... 45 Section 607. Compensation and Reimbursement................ 46 Section 608. Disqualification; Conflicting Interests....... 46 Section 609. Corporate Trustee Required; Eligibility....... 46 Section 610. Resignation and Removal; Appointment of Successor................................... 47 Section 611. Acceptance of Appointment by Successor........ 49 Section 612. Merger, Conversion, Consolidation or Succession to Business...................... 50 Section 613. Preferential Collection of Claims Against Company..................................... 51 Section 614. Appointment of Authenticating Agent........... 51 ARTICLE SEVEN Lists of Holders and Reports by Trustee and Company Section 701. Company to Furnish Trustee Names and Addresses of Holders.................................. 53 Section 702. Preservation of Information; Communications to Holders..................................... 53 Section 703. Reports by Trustee............................ 54 Section 704. Reports by Company............................ 54 ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease Section 801. Company May Consolidate, Etc., Only on Certain Terms....................................... 55 Section 802. Successor Corporation Substituted............. 55
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PAGE ---- Section 803. Assumption by Subsidiary of Company's Obligations................................. 56 ARTICLE NINE Supplemental Indentures Section 901. Supplemental Indentures Without Consent of Holders.................................. 58 Section 902. Supplemental Indentures With Consent of Holders..................................... 59 Section 903. Execution of Supplemental Indentures.......... 60 Section 904. Effect of Supplemental Indentures............. 61 Section 905. Conformity With Trust Indenture Act........... 61 Section 906. Reference in Securities to Supplemental Indentures.................................. 61 ARTICLE TEN Covenants Section 1001. Payment of Principal, Premium and Interest.... 61 Section 1002. Maintenance of Office or Agency............... 61 Section 1003. Money for Securities Payments to be Held in Trust.................................... 62 Section 1004. Corporate Existence........................... 64 Section 1005. Limitation Upon Disposition of Capital Stock of a Principal Subsidiary Bank or Principal Subsidiary.................................. 64 Section 1006. Limitation Upon Liens on Certain Capital Stock....................................... 65 Section 1007. Statements as to Compliance................... 65 Section 1008. Waiver of Certain Covenants................... 65 ARTICLE ELEVEN Redemption of Securities Section 1101. Applicability of Article...................... 66 Section 1102. Election to Redeem; Notice to Trustee......... 66 Section 1103. Selection by Trustee of Securities to be Redeemed.................................... 66 Section 1104. Notice of Redemption.......................... 67 Section 1105. Deposit of Redemption Price................... 68 Section 1106. Securities Payable on Redemption Date......... 68 Section 1107. Securities Redeemed in Part................... 68
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PAGE ---- ARTICLE TWELVE Sinking Funds Section 1201. Applicability of Article...................... 69 Section 1202. Satisfaction of Sinking Fund Payments With Securities............................. 69 Section 1203. Redemption of Securities for Sinking Fund..... 69 ARTICLE THIRTEEN Holders' Meetings Section 1301. Purposes for Which Meeting May be Called...... 70 Section 1302. Manner of Calling Meetings.................... 70 Section 1303. Call of Meetings by Company or Holders........ 71 Section 1304. Who May Attend and Vote at Meetings........... 71 Section 1305. Regulations May be Made by Trustee............ 71 Section 1306. Evidence of Actions by Holders................ 72 Section 1307. Exercise of Rights of Trustee and Holders Not to be Hindered or Delayed................... 72
9 INDENTURE, dated as of August 15, 1996, between WACHOVIA CORPORATION, a corporation duly organized and existing under the laws of the State of North Carolina (herein called the "Company"), having its principal office at 100 North Main Street, Winston-Salem, North Carolina 27101, and THE CHASE MANHATTAN BANK, a banking corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any 10 2 computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; and (4) the words "herein", "hereof", and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Act", when used with respect to any Holder, has the meaning specified in Section 104. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities. "Board of Directors" means either the board of directors of the Company, any duly authorized committee of that board or any officer of the Company duly authorized by the board of directors of the Company or a duly authorized committee of that board to take a specified action or make a specified determination (the authorization of such officer being evidenced by a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the board of directors of the Company or a duly authorized committee of that board and to be in full force and effect on the date of such certification and delivered to the Trustee). "Board Resolution" means a copy of a resolution or action certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted or taken by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Book-Entry Security" means a Security in the form prescribed in Section 205 evidencing all or part of a series of Securities, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or its nominee. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day 11 3 on which banking institutions in that Place of Payment are generally authorized or obligated by law to close. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter, "Company" shall mean such successor corporation. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President, a Vice Chairman or a Vice President, and by its Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Indenture is located at 450 West 33rd Street, Fifteenth Floor, New York, New York 10001-2697, Attention: Global Trust Services; except, that, with respect to presentation of Securities for registration of transfer and exchange, and the location of the Securities Register, such term means the office or agency of the Security Registrar in said Borough, at which at any particular time its corporate agency business shall be conducted. "corporation" includes corporations, associations, companies and business trusts. "Defaulted Interest" has the meaning specified in Section 307. "Depositary" means, with respect to the Securities of any series issuable or issued in the form of a Book-Entry Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have been appointed pursuant to Section 305, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series. "Event of Default" has the meaning specified in Section 501. 12 4 "Holder" means a Person in whose name a Security is registered in the Security Register. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301. "interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an instalment of interest on such Security. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an instalment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. "Officers' Certificate" means a certificate signed by the Chairman of the Board, the President, a Vice Chairman or a Vice President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary of the Company, or a Subsidiary, as the case may be, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel for the Company, or who may be other counsel satisfactory to the Trustee. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own 13 5 Paying Agent) for the Holders of such Securities; provided, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 502; (ii) the principal amount of a Security denominated in a foreign currency or currencies shall be the U.S. dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security; and (iii) Securities owned by or held for the account of the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned or so held which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Company to be owned by or held for the account of the Company or any other obligor upon the Securities, or any Affiliate of the Company or of such obligor and the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein and not otherwise excluded from 14 6 the provisions hereof are Outstanding for the purposes of any such determination. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 301. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Primary Federal Regulator" means the Company's primary federal banking regulator (which at the date of this Indenture is the Board of Governors of the Federal Reserve System), or any successor body or institution performing substantially the same regulatory function with respect to the Company and to the adequacy of its capital as said Board of Governors performs on the date hereof. "Principal Subsidiary; Principal Subsidiary Bank" means any Subsidiary or Subsidiary Bank, the consolidated assets of which constitute 10 percent or more of the assets of the Company and which, in the case of a Principal Subsidiary, owns shares of a Principal Subsidiary Bank. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. 15 7 "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301. "Responsible Officer", when used with respect to the Trustee, means the chairman of the trust committee, any vice president, any assistant vice president, secretary, assistant secretary, managing director, treasurer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to any particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Security Register", "Security Registrar" and "Co-Security Registrar" have the respective meanings specified in Section 305. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any instalment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such instalment of principal or interest is due and payable. "Subsidiary; Subsidiary Bank" means a corporation, state banking corporation or national banking association more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. "Trustee" means the Person named as "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series. "Trust Indenture Act" means the Trust Indenture Act of 1939, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust 16 8 Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". "Voting Stock", means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of the subject corporation, state banking corporation or national banking association (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). SECTION 102. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 17 9 SECTION 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 104. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. 18 10 (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of Securities shall be proved by the Security Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 105. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its General Counsel at 100 North Main Street, Winston-Salem, North Carolina 27101 or at any other address previously furnished in writing to the Trustee by the Company. SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than 19 11 the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 107. Conflict With Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. SECTION 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 109. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 110. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereun- 20 12 der, the holders of Senior Indebtedness and Additional Senior Obligations and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 112. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of New York and, unless the laws of another jurisdiction are specified pursuant to Section 301, the Securities shall be governed by and construed in accordance with the laws of the State of New York. SECTION 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order 21 13 contemplated by Section 303 for the authentication and delivery of such Securities. The Trustee's certificates of authentication shall be in substantially the form set forth in this Article. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 202. Form of Face of Security. THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY. [If the Security is an Original Issue Discount Security, insert -- FOR PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS __________ , ____.] 22 14 WACHOVIA CORPORATION ------------------------------ DUE ____________ No. __________ $ __________ WACHOVIA CORPORATION, a North Carolina corporation (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to ____________________, or registered assigns, the principal sum of ____________________ Dollars on ____________________ [If the Security is to bear interest prior to Maturity, insert--, and to pay interest thereon from __________, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on ____________________ and ____________________ in each year, commencing ____________________, at the rate of __________% per annum, [If applicable, insert method of calculation of floating rate,] until the principal hereof is paid or made available for payment [If applicable, insert--, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of __% per annum on any overdue principal and premium and on any overdue instalment of interest]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the __________ or __________ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture]. [If the Security is not to bear interest prior to Maturity, insert-- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear 23 15 interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.] Payment of the principal of (and premium, if any) and [if applicable, insert--any such] interest on this Security will be made at the offices or agencies of the Trustee maintained for that purpose in New York, New York [describe relevant currency] [if applicable, insert--; provided, however, that at the option of the Company payment of interest may be made by check drawn upon any Paying Agent and mailed on or prior to an Interest Payment Date to the address of the Person entitled thereto as such address shall appear in the Security Register.] REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an authenticating agent, by the manual signature of an authorized signer, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: WACHOVIA CORPORATION By [Seal] ------------------------- Attest: - ------------------------- 24 16 SECTION 203. Form of Reverse of Security. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of August 15, 1996 (herein called the "Indenture") between the Company and The Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to $ __________ ]. [If applicable, insert--The Securities of this series are subject to redemption upon not less than 30 days notice by mail, [if applicable, insert--(1) on ____________________ in any year commencing with the year ____ and ending with the year ____ through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after __________ , ____ ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [on or before ____________________ , ____% and if redeemed] during the 12-month period beginning ____________________ of the years indicated,
REDEMPTION REDEMPTION YEAR PRICE YEAR PRICE - --------------- --------------- --------------- ---------------
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 25 17 year __________ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after __________], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ________ of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR FOR REDEMPTION REDEMPTION OTHERWISE THROUGH 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.] 26 18 In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of the Indenture or of this Security) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. The indebtedness evidenced by this Security is unsecured and is issued subject to the provisions of the Indenture. Each Holder of this Security, by accepting the same, agrees to and shall be bound by such provisions. [If the Security is not an Original Issue Discount Security,--If a Bankruptcy Event of Default (as defined in the Indenture) with respect to the Company shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the Security is an Original Issue Discount Security,--If a Bankruptcy Event of Default (as defined in the Indenture) with respect to the Company shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to--insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.] The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66 2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains 27 19 provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of $____________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Indenture provides that a Subsidiary may assume the obligations of the Company under the Indenture and the Securities, subject to the satisfaction of certain conditions, including the Company's guaranteeing of the Subsidiary's obligations under this Security and the Indenture. 28 20 Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security shall be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. SECTION 204. Form of Trustee's Certificate of Authentication. This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. By --------------------------- [NAME OF TRUSTEE] as Trustee SECTION 205. Issuance of Book-Entry Securities. Any Book-Entry Security authenticated and issued hereunder shall, in addition to the provisions contained in Section 202 and 203, bear a legend in substantially the following form, subject to modification by the Depositary: "This Security is a Book-Entry Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture and may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary." Any Book-Entry Security issued hereunder may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate may from time to time be reduced to reflect exchanges or increased to reflect the issuance of additional uncertificated Securities of such series. Any endorsement of a Book- Entry Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the 29 21 Trustee and in such manner as shall be specified in such Security or the Company Order to be delivered to the Trustee pursuant to Section 303. Any instructions by the Company with respect to a Book-Entry Security, after its initial issuance, shall be in writing but need not comply with Section 102. Each Depositary designated pursuant to Section 301 for a Book-Entry Security must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. Book-Entry Securities may be issued only in registered form and in either temporary or permanent form. ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, or 1107); (3) the date or dates on which the principal of the Securities of the series is payable; (4) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date; 30 22 (5) the place or places, if any, in addition to New York, New York where the principal of (and premium, if any) and interest on Securities of the series shall be payable; (6) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (9) the currency or currencies, including composite currencies, in which payment of the principal of and any premium and interest on the Securities of the series shall be payable if other than the currency of the United States of America; (10) if the amount or payments of principal of and any premium or interest on the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (11) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (12) if other than the law of the State of New York, the law which will govern the terms of the Securities; (13) the form of the Securities, and the extent, if any, to which any of the Securities will be issuable in Book-Entry form and, in such case, the Depositary for such Book-Entry Security or Securities, and the terms and conditions, if any, upon which such Book-Entry Security may be exchanged in whole or in part for definitive Securities, if other than as set forth in Section 305; and (14) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). 31 23 All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any such indenture supplemental hereto. At the option of the Company, interest on the Securities of any series that bears interest may be paid by mailing a check to the address of the person entitled thereto as such address shall appear in the Securities Register. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. SECTION 302. Denominations. The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its President or one of its Executive Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order and subject to the provisions hereof shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board 32 24 Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating: (a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; (b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and (c) that all conditions precedent to the authentication and delivery of such Securities have been complied with and that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors rights and to general equity principles. If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. If the Company shall establish pursuant to Section 301 that the Securities of a series are to be issued in whole or in part in the form of one or more Book-Entry Securities, then the Company shall execute and the Trustee shall, in 33 25 accordance with this Section and a Company Order for the authentication and delivery of such Book-Entry Securities with respect to such series, authenticate and deliver one or more Book-Entry Securities in permanent or temporary form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Book-Entry Securities, (ii) shall be registered in the name of the Depositary for such Book-Entry Security or Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions. SECTION 304. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series. SECTION 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the office of the Security Registrar designated pursuant to this Section 305 or Section 1002 a register (being the combined register of the Security Registrar and any Co-Security Registrars and herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company 34 26 shall provide for the registration of Securities and for transfers of Securities. The Trustee is hereby initially appointed "Security Registrar" for the purpose of registering Securities as herein provided. Upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount. At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or any Co-Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar or such Co-Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer. Neither the Company, the Security Registrar nor any Co-Security Registrar shall be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or 35 27 exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 205, the Company shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 301(13) shall no longer be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Book-Entry Security or Securities representing such series in exchange for such Book-Entry Security or Securities. The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Book-Entry Securities shall no longer be represented by such Book-Entry Security or Securities. In such event, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Book-Entry Security or Securities representing such series in exchange for such Book-Entry Security or Securities. If specified by the Company pursuant to Section 301 with respect to a series of Securities, or if an Event of Default, or an event which with notice, lapse of time or both would be an Event of Default with respect to the Securities of such series has occurred and is continuing, a Person owning a beneficial interest in a Book-Entry Security for Securities of such series may instruct the Depositary for such series of Securities to surrender such Book- Entry Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor in definitive registered form. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge: (a) to the Person specified by such Depositary a new Security or Securities of the same series, of like tenor, of any authorized denomina- 36 28 tion as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Book-Entry Security; and (b) to such Depositary a new Book-Entry Security of like tenor in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Book-Entry Security and the aggregate principal amount of Securities delivered pursuant to clause (a) above. Upon the exchange of a Book-Entry Security for Securities in definitive form, such Book-Entry Security shall be cancelled by the Trustee. Securities issued in exchange for a Book-Entry Security pursuant to this Section shall be registered in such names and in such authorized denominations, and delivered to such addresses, as the Depositary for such Book-Entry Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered or to the Depositary. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Book-Entry Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless then the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide 37 29 purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose name the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted 38 30 Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date thereof to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). (2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. 39 31 SECTION 308. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest on such Security and for all other purposes, whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. SECTION 309. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order. SECTION 310. Computation of Interest. Except as otherwise contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. SECTION 311. Regarding Beneficial Ownership Interests in Book-Entry Securities. Neither the Company, the Trustee, any Authenticating Agent, any Paying Agent nor the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Book-Entry Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. 40 32 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to (i) remaining rights of registration of transfer, substitution and exchange of Securities, (ii) rights hereunder of Holders to receive payments of principal of (and premium, if any) and interest on the Securities, and other rights, duties and obligations of the Holders as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, and (iii) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (1) either (A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) all such Securities not thereto fore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; and the Company, in the case of (i), (ii), or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and 41 33 (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of all series as to which it is Trustee and if the other conditions thereto are met. In the event there are two or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments from all Trustees hereunder. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected 42 34 by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or (3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or (4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of a least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or a Principal Subsidiary or Principal Subsidiary Bank (including this Indenture), whether such indebtedness now exists or shall hereafter be created, which default shall have resulted in such indebtedness, in an aggregate principal amount exceeding $50,000,000, becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, or there having been deposited in trust a sum of money sufficient to discharge in full such indebtedness, or failure to pay when due any such indebtedness in such amount within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a written notice specifying such default and stating that such notice is a "Notice of 43 35 Default" hereunder; provided, however, that, subject to the provisions of Section 601 and 602, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; or (6) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case under the Federal or state bankruptcy laws, as now or hereafter constituted, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (7) the commencement by the Company of a voluntary case under the Federal or state bankruptcy laws, as now or hereafter constituted, or the consent by the Company to the entry of a decree or order for relief in an involuntary case under any such law; or (8) any other Event of Default provided with respect to Securities of such series specified as contemplated by Section 301. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the 44 36 Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) all Events of Default with respect to Securities of that series have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of 45 37 collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including and claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and 46 38 (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. Nothing herein contained shall be deemed to authorized the Trustee to authorized or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of the Holder in any such proceeding. SECTION 505. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereof of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee hereunder; and SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, 47 39 without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively. SECTION 507. Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holder or Holders of any other series, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and 48 40 to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee, and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or 49 41 exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture, and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default: (1) in the payment of the principal of (or premium, if any) or interest on any Security of such series, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 514. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or 50 42 interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date). SECTION 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the exercise of any power herein granted to the Trustee, but will suffer and permit the exercise of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to Securities of any series, (1) the Trustee undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a 51 43 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 52 44 the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; 53 45 (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity of sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. 54 46 SECTION 607. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of any express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee and its officers and directors for, and to hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of the powers or duties of the Trustee hereunder. As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except for funds held in trust for the benefit of the Holders of Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default hereunder, the fees, charges, expenses and indemnities provided for in this Section 607 (including the charges of Trustee's counsel) are intended to constitute expenses of the administration under any applicable Federal or state bankruptcy, insolvency or other similar law. The provision of this Section 607 shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee, any Paying Agent or any Authenticating Agent, as the case may be. SECTION 608. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. 55 47 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 56 48 (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal, or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all 57 49 Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. (g) Upon the appointment of a successor Trustee (except pursuant to Section 612), all fees, charges and expenses to date of the retiring Trustee shall become immediately due and payable. (h) The retiring Trustee shall have no liability for the acts or omissions of any successor Trustee hereunder except with respect to successors pursuant to Section 612. SECTION 611. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 607. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer, and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change 58 50 any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this 59 51 Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against Company. If the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company or of any other obligor on the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or any such other obligor on the Securities. SECTION 614. Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent 60 52 shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such notice of resignation or upon such termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607. The provisions of Sections 308, 603, 604, 605, 607 and 612 shall be applicable to each Authenticating Agent. 61 53 Pursuant to each appointment made under this Section, the Securities of each series covered by such appointment may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. [NAME OF TRUSTEE] As Trustee By: -------------------------------- As Authenticating Agent By: -------------------------------- Authorized Officer ARTICLE SEVEN LISTS OF HOLDERS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, not more than 15 days after each Regular Record Date, in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date, and (b) at such times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Co-Security Registrar. SECTION 702. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and 62 54 addresses of Holders received by the Trustee in its capacity as Co-Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. (b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders made pursuant to the Trust Indenture Act. SECTION 703. Reports by Trustee. (a) Within 60 days after May 15 of each year commencing with the year 1997, the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report dated as of such May 15 that complies with the Trust Indenture Act. (b) The Trustee shall transmit by mail to all Holders such other reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 704. Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. 63 55 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 64 56 successor corporation had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities. SECTION 803. Assumption by Subsidiary of Company's Obligations. A Subsidiary may assume the obligations of the Company for the due and punctual payment of the principal of (and premium, if any) and interest on the Securities and the performance of the Company's other obligations under this Indenture and the Securities (except its obligations under Section 1004, which, as contemplated by Subsection (2) below, shall continue to bind the Company), to be performed or observed, provided that: (1) such Subsidiary shall expressly assume such obligations by an indenture supplemental hereto, executed and delivered to the Trustee; (2) the Company shall guarantee the obligations of such Subsidiary under the Securities and this Indenture, which guarantee shall also include an undertaking by the Company to continue to comply with the covenants set forth in Section 1004; (3) in addition to assuming obligations under the Securities and this Indenture, such Subsidiary shall agree to indemnify the Holder of each Security against (a) any tax, assessment or governmental charge imposed as a result of or relating to the act of such assumption and (b) costs or expenses incurred directly in connection with the act of assumption; (4) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; (5) the Company shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, to the effect that (a) such assumption, (b) such guarantee and (c) such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such assumption have been complied with and such supplemental indenture and guarantee by the Company have been duly authorized and delivered by the Company, and each constitutes a valid and legally binding instrument of the Company, enforceable in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally, and subject, as to enforcement, to general principles of equity, and any other customary exceptions which such counsel states do not 65 57 materially prejudice the rights of the Holders under this Indenture and the Securities; and (6) such Subsidiary shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to the effect that (a) such Subsidiary has obtained all governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor in respect of the Securities in place of the Company; (b) such approvals and consents are at the time of assumption in full force and effect; and (c) such supplemental indenture has been duly authorized and delivered by such Subsidiary, constitutes a valid and legally binding instrument of such Subsidiary, enforceable in accordance with its terms subject to bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally and subject, as to enforcement, to general principles of equity, and any other customary exceptions which such counsel states do not materially prejudice the rights of the Holders under this Indenture and the Securities. Upon compliance with, and subject to, the requirements set forth above in this Section 803, such Subsidiary shall succeed to and be substituted for the Company, with the same effect as if it had been named as the Company herein and in the Securities in place of the Company; and the Company shall thereupon be relieved of any further obligation or liability hereunder or upon the Securities (except as provided in Subsection (2) above and in its guarantee as aforesaid). Such Subsidiary may cause to be signed, and may issue in its own name, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Subsidiary, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered as provided herein, with the guarantee of the Company endorsed thereon, and any Securities which such Subsidiary thereafter shall cause to be signed and delivered, with the guarantee of the Company endorsed thereon, to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date thereof. In the event a Subsidiary shall assume the obligations of the Company in accordance with this Section 803, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. 66 58 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities or to evidence the assumption by a Subsidiary of the Company's obligations in accordance with Section 803; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default; or (4) to add to or charge any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or (5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Section 201 and 301; or 67 59 (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); (9) to cure any ambiguity, to correct or supplement any provision contained herein or in any supplemental indenture which may be inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under this Indenture or under any supplemental indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; and (10) to provide for the terms and conditions upon which Securities which qualify as capital under rules, regulations, orders, interpretive rulings and guidelines of the Primary Federal Regulator as from time to time in effect may be issued and the terms and characteristic of any such Securities; provided, however, that no such supplemental indenture shall effect any change in any Securities which may at the time be outstanding under this Indenture. SECTION 902. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Stated Maturity of the principal of, or any instalment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any 68 60 Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or (3) modify any of the provisions of this Section, Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in Section 1006 or the deletion of this provision, in accordance with the requirements of Section 611(b) and 901(8). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officer's Certificate stating that all conditions precedent to the execution of such supplemental indenture have been fulfilled and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into 69 61 any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 905. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. SECTION 1002. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or 70 62 upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designations or rescission and of any change in the location of any such other office or agency. The Company hereby designates as a Place of Payment for each series of Securities, the Borough of Manhattan, The City of New York, and appoints the Trustee at its Corporate Trust Office as Paying Agent in such city. SECTION 1003. Money for Securities Payments to be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its actions or failure so to act. 71 63 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 72 64 date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 1004. Corporate Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries considered as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders. SECTION 1005. Limitation Upon Disposition of Capital Stock of a Principal Subsidiary Bank or Principal Subsidiary. Subject to Section 801, the Company will not, directly or indirectly, (1) sell or permit to be issued any shares of capital stock of any Principal Subsidiary Bank (other than directors' qualifying shares) or any shares of capital stock of a Principal Subsidiary or any securities convertible into or rights to subscribe to such capital stock, unless, after giving effect to such transaction and to shares issuable upon conversion or exercise of rights into such capital stock (including such securities, if any, which may be the subject of such transaction), at least 80% of the outstanding shares of capital stock of each class of such Principal Subsidiary or Principal Subsidiary Bank shall be owned at that time, directly or indirectly, by the Company, or (2) pay any dividend, or make any other distribution, in shares of capital stock of a Principal Subsidiary Bank or in shares of capital stock of a Principal Subsidiary which owns capital stock of any Principal Subsidiary Bank, unless prior to such sale, payment or distribution the Principal Subsidiary Bank to which the transaction relates shall have unconditionally guaranteed payment when due of the principal of (and premium, if any) and interest on the Securities, such Principal Subsidiary Bank shall have obtained all regulatory approvals, if any, required to permit the guarantee of the Securities and the Company shall have delivered to the Trustee an Opinion of Counsel stating that the guarantee of the Securities by such Principal Subsidiary Bank has been duly authorized, executed and delivered and constitutes a valid and legally binding obligation of such Principal Subsidiary Bank. 73 65 SECTION 1006. Limitation Upon Liens on Certain Capital Stock. The Company will not at any time directly or indirectly create, assume, incur or suffer to be created, assumed or incurred or to exist any mortgage, pledge, encumbrance or lien or charge of any kind upon any shares of capital stock of any Principal Subsidiary Bank (other than directors' qualifying shares) or Principal Subsidiary; provided, however, that, notwithstanding the foregoing, the Company may incur or suffer to be incurred or to exist upon such capital stock (a) liens for taxes, assessments or other governmental charges or levies which are not yet due or are payable without penalty or of which the amount, applicability or validity is being contested by the Company in good faith by appropriate proceedings and the Company shall have set aside on its books adequate reserves with respect thereto (segregated to the extent required by generally accepted accounting principles), or (b) the liens of any judgment, if such judgment shall not have remained undischarged, or unstayed on appeal or otherwise, for more than 60 days. SECTION 1007. Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement, which need not comply with Section 102, signed by the Chairman of the Board, the President, a Vice Chairman or a Vice President and by the Treasurer, an Assistant Treasurer, the Comptroller or an Assistant Comptroller of the Company, stating, as to each signer thereof, that (1) a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision, and (2) to the best of his knowledge, based on such review, (a) the Company has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof. SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1004 through 1006 with 74 66 respect to the Securities of any series if before the time for such compliance the Holders of at least 66 2/3% in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article or Article Twelve. SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities at the election of the Company prior to the expiration of any restriction on redemptions provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of 75 67 the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price and the amount of any accrued interest to the Redemption Date, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, (4) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the place or places where such Securities are to be surrendered for payment of the Redemption Price and any accrued interest to the Redemption Date, and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. 76 68 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. 77 69 ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments With Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such Series; provided, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, 78 70 which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. ARTICLE THIRTEEN HOLDERS' MEETINGS SECTION 1301. Purposes for Which Meetings May be Called. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes: (1) to give any notice to the Company or to the Trustee, or to give any direction to the Trustee, or to waive or consent to the waiving of any Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Five; (2) to remove the Trustee or appoint a successor trustee, pursuant to the provisions of Article Six; (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Sections 901 and 902; or (4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities under any other provision of this Indenture or under applicable law. SECTION 1302. Manner of Calling Meetings. The Trustee may at any time call a meeting of Holders to take any action specified in Section 1301. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed by the Trustee to the Company and to the Holders not less than 20 nor more than 60 days prior to the date fixed for the meeting. Any meeting shall be valid without notice if the Holders of all of the Outstanding Securities are present in person or by proxy, 79 71 or if notice is waived before or after the meeting by the Holders of all of the Outstanding Securities, and if the Company and the Trustee are either present or have, before or after the meeting, waived notice. SECTION 1303. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the Holders of not less than 30% in aggregate principal amount of the Outstanding Securities, shall have requested the Trustee to call a meeting of Holders to take any action authorized in Section 1301 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of such meeting within 20 days after receipt of such request, then the Company or such Holders in the amount above specified may determine the time and the place in New York, New York or Winston-Salem, North Carolina for such meeting and may call such meeting to take any action authorized in Section 1301, by mailing notice thereof as provided in Section 1302. SECTION 1304. Who May Attend and Vote at Meetings. To be entitled to vote at any meeting of Holders a person shall (a) be a Holder of one or more Securities with respect to which the meeting is being held, or (b) be a person appointed by an instrument in writing as proxy by such Holder of one or more Securities. The only persons who shall be entitled to be present or to speak at any meeting of Holders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 1305. Regulations May be Made by Trustee. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. At any meeting each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities held or represented by him. 80 72 SECTION 1306. Evidence of Actions by Holders. Whenever the Holders of a specified percentage in aggregate principal amount of the Securities may take any action, the fact that the Holders of such percentage have acted may be evidence by (a) instruments of similar tenor executed by Holders in person or by attorney or written proxy, or (b) the Holders voting in favor thereof at any meeting of Holders called and held in accordance with the provisions of the rules for meetings of Holders, or (c) by a combination thereof. The Trustee may require proof of any matter concerning the execution of any instrument by a Holder or his attorney or proxy as it shall deem necessary. SECTION 1307. Exercise of Rights of Trustee and Holders Not to be Hindered or Delayed. Nothing in this Article contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Securities. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. 81 73 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. WACHOVIA CORPORATION BY: /s/ RICHARD B. ROBERTS ----------------------------- Executive Vice President [SEAL] Attest: /s/ ALICE WASHINGTON GROGAN - ----------------------------------- Secretary THE CHASE MANHATTAN BANK, as Trustee BY: /s/ JOANNE ADAMIS ----------------------------- Second Vice President [SEAL] Attest: /s/ LINCOLN A. GRAHAM - -------------------------- EX-5.A 4 LEGALITY OPINION 1 EXHIBIT 5(a) [WACHOVIA LOGO] Wachovia Corporation 100 North Main Street Winston-Salem, North Carolina 27150 August 15, 1996 Wachovia Corporation 100 North Main Street Winston-Salem, North Carolina 27150 and 191 Peachtree Street, N.E. Atlanta, Georgia 30303 Re: Registration of $200,000,000 of Senior Debt Securities Gentlemen: I am General Counsel to Wachovia Corporation, a North Carolina corporation ("Wachovia"), and I have acted in such capacity in connection with the registration under the Securities Act of 1933 (the "Act"), and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder, of $200,000,000 aggregate principal amount (which term shall mean, in the case of debt securities issued at an original issue discount within the meaning of Section 1273 of the Internal Revenue Code of 1986, the price at which such debt securities are first offered to the public) of Senior Debt Securities of Wachovia (the "Senior Debt Securities"), to be issued pursuant to the Indenture, dated as of August 15, 1996, between Wachovia and The Chase Manhattan Bank, as Trustee (the "Indenture"). In so acting, I have examined and relied upon the accuracy of original, certified, conformed or photographic copies of such records, agreements, certificates and other documents as I have deemed necessary or appropriate to enable me to render the opinions set forth below. In all such examinations, I have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to me as certified, conformed or photographic copies and, as to certificates of public officials, I have assumed the same to have been properly given and to be accurate. Based upon the foregoing, I am of the opinion that: (i) Wachovia has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina; (ii) The execution and delivery of the Indenture by Wachovia has been validly authorized and the Indenture constitutes the valid and binding obligation of Wachovia in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to rights of acceleration and the enforcement of remedies to general principals of equity); and (iii) The Senior Debt Securities, when duly authorized by Wachovia, executed on behalf of Wachovia, authenticated by the Trustee under the Indenture and sold by Wachovia, will be validly issued, will constitute valid and binding obligations of Wachovia in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to rights of acceleration and the enforcement of remedies to general principals of equity) and will be entitled to the benefits of the Indenture in accordance with their terms and the terms of the Indenture subject as aforesaid. I consent to the filing of this opinion and my opinion dated June 19, 1996 with respect to Wachovia's Subordinated Debt Securities as exhibits to Wachovia's Registration Statement on Form S-3 (File Nos. 33-6280 and 333-6319) and to the reference to me under the caption "Legal Matters" in the Prospectus that forms a part thereof. Very truly yours, /s/ KENNETH W. MCALLISTER -------------------------------------- Kenneth W. McAllister EX-12 5 COMPUTATION OF RATIO OF EARNINGS 1 EXHIBIT 12 WACHOVIA CORPORATION RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS YEAR ENDED DECEMBER 31, ENDED JUNE --------------------------------------------------------------------------- 30, 1996 1995 1994 1993 1992 1991 1990 ---------- ---------- ---------- ---------- ---------- ---------- ---------- (A) EXCLUDING INTEREST ON DEPOSITS Earnings: Income before income taxes................ $ 454,275 $ 868,868 $ 761,482 $ 687,540 $ 596,203 $ 280,918 $ 434,324 Less capitalized interest............. 0 (1,530) (362) 0 0 0 0 Fixed charges.......... 398,395 768,982 512,717 296,396 232,226 396,793 533,825 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Earnings as adjusted...... $ 852,670 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711 $ 968,149 ========== ========== ========== ========== ========== ========== ========== Fixed charges: Interest on purchased and other short term borrowed funds....... $ 220,420 $ 467,007 $ 272,572 $ 173,847 $ 190,988 $ 369,202 $ 505,513 Interest on long-term debt................. 171,100 288,646 226,584 107,585 25,153 13,049 15,249 Portion of rents representative of the interest factor ( 1/3) of rental expense.............. 6,875 13,329 13,561 14,964 16,085 14,542 13,063 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Fixed charges... $ 398,395 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793 $ 533,825 ========== ========== ========== ========== ========== ========== ========== Ratio of earnings to fixed charges.......... 2.14 x 2.13x 2.48x 3.32x 3.57x 1.71x 1.81x (B) INCLUDING INTEREST ON DEPOSITS: Adjusted earnings from (A) above.............. $ 852,670 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711 $ 968,149 Add interest on deposits............... 433,280 823,454 539,232 557,580 750,887 1,085,598 1,163,352 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Earnings as adjusted...... $1,285,950 $2,459,774 $1,813,069 $1,541,516 $1,579,316 $1,763,309 $2,131,501 ========== ========== ========== ========== ========== ========== ========== Fixed charges: Fixed charges from (A) above................ $ 398,395 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793 $ 533,825 Interest on deposits... 433,280 823,454 539,232 557,580 750,887 1,085,598 1,163,352 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Adjusted fixed charges... $ 831,675 $1,592,436 $1,051,949 $ 853,976 $ 983,113 $1,482,391 $1,697,177 ========== ========== ========== ========== ========== ========== ========== Adjusted earnings to adjusted fixed charges................ 1.55 x 1.54x 1.72x 1.81x 1.61x 1.19x 1.26x
EX-23.A 6 CONSENT OF ERNST & YOUNG 1 EXHIBIT 23(a) CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Post-Effective Amendment No. 1 to the Registration Statements (Form S-3 Nos. 333-6319 and 33-6280) and related Prospectus of Wachovia Corporation for the registration of $1 billion of subordinated debt securities and $200 million of senior debt securities and to the incorporation by reference therein of our report dated January 11, 1996 with respect to the consolidated financial statements of Wachovia Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. Ernst & Young LLP Winston-Salem, North Carolina August 12, 1996 EX-24.A 7 POWER OF ATTORNEY 1 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: We, the undersigned officers of Wachovia Corporation, and each of us, do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), our attorneys-in-fact and agents with full power of substitution for us and in our name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, we the undersigned have executed this Power of Attorney this 12th day of August, 1996. /s/ L. M. BAKER, JR. -------------------------------------- L. M. Baker, Jr. President and Chief Executive Officer (Principal Executive Officer) /s/ ROBERT S. MCCOY, JR. -------------------------------------- Robert S. McCoy, Jr. Executive Vice President and Chief Financial Officer (Principal Financial Officer) /s/ DONALD K. TRUSLOW -------------------------------------- Donald K. Truslow Comptroller (Principal Accounting Officer) 2 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 12th day of August, 1996. /s/ RUFUS C. BARKLEY, JR. -------------------------------------- Rufus C. Barkley, Jr. 3 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ JOHN L. CLENDENIN -------------------------------------- John L. Clendenin 4 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 12th day of August, 1996. /s/ LAWRENCE M. GRESSETTE, JR. -------------------------------------- Lawrence M. Gressette, Jr. 5 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ THOMAS K. HEARN, JR. -------------------------------------- Thomas K. Hearn, Jr. 6 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ DONALD R. HUGHES -------------------------------------- Donald R. Hughes 7 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ JAMES W. JOHNSTON -------------------------------------- James W. Johnston 8 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ SHERWOOD H. SMITH, JR. -------------------------------------- Sherwood H. Smith, Jr. 9 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ CHARLES MCKENZIE TAYLOR -------------------------------------- Charles McKenzie Taylor 10 EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, the undersigned director of Wachovia Corporation (the "Corporation"), do hereby make, constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and each of them (either of whom may act without the consent or joinder of the other), my attorneys-in-fact and agents with full power of substitution for me and in my name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to (a) the Registration Statement on Form S-3 (File No. 333-06319) and (b) the Corporation's Registration Statement on Form S-3 (File No. 33-6280), together covering the issuance by the Corporation of up to $1,200,000,000 aggregate principal amount of debt securities, or such larger amount as shall be authorized by the Corporation, and to file the same with the Securities and Exchange Commission, with any exhibits thereto, and other documents in connection therewith, granting unto said attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing requisite and necessary to be done in the premises, as fully to all intents and purposes as I might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or either of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, I have executed this Power of Attorney this 9th day of August, 1996. /s/ JOHN C. WHITAKER, JR. -------------------------------------- John C. Whitaker, Jr. EX-24.C 8 RESOLUTION AUTHORIZING POWER OF ATTORNEY 1 EXHIBIT 24(C) WACHOVIA CORPORATION BOARD OF DIRECTORS April 25, 1986 "RESOLVED, that the proper officers of the Company be, and each of them hereby is, authorized, in the name and on behalf of the Company, to execute and deliver a power of attorney appointing each of Ralph N. Strayhorn and Richard M. Langway to act as attorneys-in-fact for the Company for the purpose of executing and filing with the SEC, in its name and on its behalf, any such Registration Statement and any and all amendments (including, without limitation, post-effective amendments) or supplements thereto, with any exhibits thereto and other documents in connection therewith." April 26, 1996 "RESOLVED, that the resolutions and authorizations contained therein adopted by this Board at its April 25, 1986 meeting and subsequently amended and extended to the date of this meeting, relating to the issuance of $300 million principal amount of debt securities and the resolutions and authorizations contained therein adopted by this Board at its October 27, 1995 meeting relating to the issuance of $1 billion principal amount of subordinated debt securities, be and the same hereby are renewed and extended to expire concurrent with the next regular annual meeting of the Board following the date of this meeting, if efforts directed toward issuance of Notes as contemplated therein shall not have been undertaken by officers of the Corporation on or before such date; and "FURTHER RESOLVED, that, as set forth in the resolutions and authorizations described above, the proper officers of the Corporation be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to execute and deliver a power of attorney appointing each of Kenneth W. McAllister and Alice Washington Grogan to act as attorneys-in-fact for the Corporation for the purpose of executing and filing with the SEC, in its name and on its behalf, any Registration Statement related to such promissory notes and any and all amendments (including, without limitation, post-effective amendments) or supplements thereto, with any exhibits thereto and other documents in connection therewith." EX-25.A 9 FORM T-1 1 EXHIBIT 25(A) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 --------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE --------------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) ----------- --------------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE 10017 NEW YORK, NEW YORK (Zip Code) (Address of principal executive offices)
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 27101 WINSTON-SALEM, NORTH CAROLINA (Zip Code) (Address of principal executive offices)
--------------------- SENIOR DEBT SECURITIES (Title of Indenture securities) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 GENERAL ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each such affiliation. None. ITEM 16. LIST OF EXHIBITS List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996. 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee. 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 12th day of August, 1996. THE CHASE MANHATTAN BANK By: Joanne Adamis ------------------------------------ Second Vice President 2 3 THE CHASE MANHATTAN BANK 270 PARK AVENUE NEW YORK, NY 10017-2070 CERTIFICATE I, Jean E. Rugani, an Assistant Corporate Secretary of The Chase Manhattan Bank (formerly known as Chemical Bank), a banking organization organized under the laws of the State of New York, do hereby certify that attached are true and correct copies of -- (a) the Organization Certificate of Chemical Bank, as approved and filed in the office of the Superintendent of Banks of the State of New York on November 26, 1968, (b) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on February 17, 1969, (c) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on September 8, 1977, (d) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on January 29, 1981, (e) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on September 14, 1982, (f) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on March 13, 1985; (g) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York on June 4, 1992; and (h) a Certificate of Amendment of the Organization Certificate of Chemical Bank as approved and filed in the office of the Superintendent of Banks of the State of New York effective as of July 13, 1996. I further certify that said Organization Certificate, as amended by said Certificates of Amendment, is in full force and effect on the date hereof. IN WITNESS WHEREOF I have hereunto set my hand and affixed the seal of The Chase Manhattan Bank as of this 18th day of July 1996. /s/ Jean E. Rugani -------------------------------------- Jean E. Rugani I, BERNARD GASSMAN, Deputy Superintendent of Banks of the State of New York, do hereby certify that I have caused the annexed Copy of the Organization Certificate of Chemical Bank dated November 26, 1968, and filed in the office of the Superintendent of Banks on November 26, 1968 to be compared by a competent clerk with the original on file in the Banking Department, and the same is a correct copy of said Organization Certificate end of the whole thereof. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of New York, N.Y., this 17th day of February 1968 /s/ Bernard Gassman -------------------------------------- Bernard Gassman Deputy Superintendent 3 4 ORGANIZATION CERTIFICATE OF CHEMICAL BANK Received this 25th day of November 1968 --------------------------------------------------------- Superintendent of Banks Filed for examination this 25th day of November 1968 --------------------------------------------------------- Superintendent of Banks Approved by the Banking Board by unanimous instrument in writing on the 26th day of November 1968 --------------------------------------------------------- Secretary of the Banking Board Approved this 26th day of November 1968 --------------------------------------------------------- Superintendent of Banks Filed in the office of Superintendent of Banks this 26th day of November 1968 Recorded in the office of this day of 19 4 5 ORGANIZATION CERTIFICATE OF CHEMICAL BANK We, the undersigned all being of full age and citizens of the United States, two of us being residents of the State of New York and three of us being residents of states contiguous to the State of New York, for the purpose of incorporating and organizing a trust company under the banking laws of the State of New York do hereby certify as follows: FIRST: The name by which the Corporation is to be known is CHEMICAL BANK. SECOND: The place where its office is to be located is 20 Pine Street, Borough of Manhattan, City, County and State of New York. THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $510,000, and the number of shares into which such capital stock is to be divided is 42,500 shares, each of the same class and of the par value of $12 per share. FOURTH: The names, places of residence and citizenship of the incorporators and the number of shares of capital stock of the Corporation subscribed for by each are as follows:
NUMBER OF PLACE OF SHARES NAME RESIDENCE CITIZENSHIP SUBSCRIBED ------------------------------------- ------------------------- ------------ --------- William S. Renchard.................. 200 E. 66th Street U.S. 84 New York, N.Y. 10021 Hulbert S. Aldrich................... 1088 Park Avenue U.S. 84 New York, N.Y. 10028 Howard W. McCall, Jr................. 68 Dorchester Road U.S. 84 Darien, Conn. 06820 Walter M. Ross....................... 442 North Street U.S. 84 Greenwich, Conn. 06830 Arthur P. Ringler.................... 27 Londonberry Way U.S. 84 Summit, New Jersey 07901
FIFTH: The number of directors of the Corporation shall be not less than five nor more than fifteen; provided, however, that upon effectiveness of the merger of Chemical Bank New York Trust Company into the Corporation the number of directors of the Corporation shall be not less than seven nor more than twenty-five. SIXTH: The names of the incorporators who are to serve as directors of the Corporation until the first annual meeting of stockholders of the Corporation are: William S. Renchard Hulbert S. Aldrich Howard W. McCall, Jr. Walter M. Ross Arthur P. Ringler SEVENTH: The Corporation is to exercise the powers conferred by Section 100 of the banking laws of the State of New York. 5 6 IN WITNESS WHEREOF, the undersigned have executed this Certificate this day of 1968. /s/ WILLIAM S. RENCHARD -------------------------------------- William S. Renchard, Incorporator /s/ HULBERT S. ALDRICH -------------------------------------- Hulbert S. Aldrich, Incorporator /s/ HOWARD W. McCALL, JR. -------------------------------------- Howard W. McCall, Jr., Incorporator /s/ WALTER M. ROSS -------------------------------------- Walter M. Ross, Incorporator /s/ ARTHUR P. RINGLER -------------------------------------- Arthur P. Ringler, Incorporator 6 7 STATE OF NEW YORK ) COUNTY OF NEW YORK, ) SS
On this day of 1968 personally appeared before me William S. Renchard, Hulbert S. Aldrich, Howard W. McCall, Jr., Walter M. Ross and Arthur P. Ringler, to me known to be the persons described in and who executed the foregoing certificate, and severally acknowledged that they executed the same. -------------------------------------- Notary Public [Notarial Seal] Filed in the Office of the Superintendent of Banks, State of New York, this 20 day of 19 - -------------------------------------- Administrative Officer 7 8 I, FRANK WILLE, Superintendent of Banks of the State of New York, DO HEREBY APPROVE, the annexed certificate entitled "Certificate of Amendment of the Organization Certificate of CHEMICAL BANK under Section 8005 of the Banking Law" dated 1969, providing for increase of capital stock from $ to $ IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of Albany, this 17th day of February 1969 -------------------------------------- Superintendent of Banks I, BERNARD GASSMAN Deputy Superintendent of Banks of the State of New York, do hereby certify that I have caused the annexed Copy of Certificate of Amendment of the Organization Certificate of Chemical Bank dated February 10, 1969, and filed in the office of the Superintendent of Banks on February 17, 1969 to be compared by a competent clerk with the original on file in the Banking Department, and the same is a correct copy of said Certificate of Amendment of Organization Certificate and of the whole thereof. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of New York, N.Y., this 17th day of February 1969 /s/ Bernard Gassman -------------------------------------- Deputy Superintendent 8 9 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW WE, WILLIAM S. RENCHARD and RAYMOND F. ADAMS, being, respectively, the President and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The date on which the Organization Certificate of the Corporation was filed by the Superintendent of Banks of the State of New York is November 26, 1968. 3. Paragraph Third of the Organization Certificate of the Corporation, stating that the amount of the its authorized capital stock is $510,000 and the number of shares into which such capital stock is to be divided is 42,500 shares, each of the same class and of the par value of $12 per share, is hereby amended to read as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $160,731,564 and the number of shares into which such capital stock is to be divided is 13,394,297 shares, each of the same class and of the par value of $12 per share." 4. This amendment to the Organization Certificate was approved by the votes, cast in person or by proxy at a special stockholders' meeting of the Corporation duly held upon notice on December 30, 1968, by the holders of record of all the outstanding shares of the capital stock of the Corporation. IN WITNESS WHEREOF, the undersigned have executed this Certificate this day of February 1969. /s/ William S. Renchard -------------------------------------- William S. Renchard President /s/ Raymond F. Adams -------------------------------------- Raymond F. Adams Secretary [Corporate Seal] 9 10 STATE OF NEW YORK, ) COUNTY OF NEW YORK ) SS.:
I, RAYMOND F. ADAMS, being duly sworn, depose and say that I, the said Raymond F. Adams, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and known the contents thereof and the statements therein contained are true. -------------------------------------- Raymond F. Adams Secretary Subscribed and sworn to before me this day of February 1969. /s/ DONALD E. GOULD - -------------------------------------- Notary Public 10 11 I, WILLIAM J. HEANEY, Deputy Superintendent of Banks of the State of New York DO HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of the Organization Certificate of under Section 8005 of the Banking Law" dated 19 providing for increase of capital stock from $ to $ . IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of New York, N.Y., this 8th day of September 1977. /s/ WILLIAM J. HEANEY -------------------------------------- Deputy Superintendent of Banks 11 12 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW WE, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The date on which the Organization Certificate of the Corporation was filed by the Superintendent of Banks of the State of New York is November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. Paragraph THIRD of the Organization Certificate of the Corporation, as amended, stating that the amount of its authorized capital stock is $160,731,564 and the number of shares into which such capital stock is to be divided is 13,394,297 shares, each of the same class and of the par value of $12 per share, is hereby amended to read as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $187,200,000 and the number of shares into which such capital stock is to be divided is 15,600,000 shares, each of the same class and of the par value of $12 per share." 5. This amendment to the Organization Certificate was approved by the votes cast in person or by proxy at a special stockholders' meeting, duly held on August 31, 1977, by the holders of record of all the outstanding shares of the capital stock of the Corporation. IN WITNESS WHEREOF, the undersigned have executed this Certificate this 31st day of August 1977. -------------------------------------- Donald C. Platten Chairman of the Board /s/ John B. Wynne -------------------------------------- John B. Wynne Secretary [Corporate Seal] 12 13 STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK )
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B. WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and know the contents thereof and the statements therein contained are true. /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary Subscribed and sworn to before me this day of 1977. - -------------------------------------- Notary Public 13 14 I, DONALD J. KAVANAGH Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of the Organization Certificate of under Section 8005 of the Banking Law" dated as of 19 , providing for increase of capital stock from $ to $ . IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of New York, N.Y., this 29th day of January 1981. /s/ DONALD J. KAVANAGH -------------------------------------- Deputy Superintendent of Banks 14 15 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW WE, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The date on which the Organization Certificate of the Corporation was filed by the Superintendent of Banks of the State of New York is November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1977. 5. Paragraph THIRD of the Organization Certificate of the Corporation, as amended, stating that the amount of its authorized capital stock is $187,200,000 and the number of shares into which such capital stock is to be divided is 15,600,000 shares, each of the same class and of the par value of $12 per share, is hereby amended to read as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $203,580,000 and the number of shares into which such capital stock is to be divided is 16,965,000 shares, each of the same class and of the par value of $12 per share." 6. This amendment to the Organization Certificate was approved by the votes cast in person or by proxy at a special stockholders' meeting, duly held as of December 31, 1980, by the holders of record of all the outstanding shares of the capital stock of the Corporation. IN WITNESS WHEREOF, the undersigned have executed this Certificate as of December 31, 1980. /s/ Donald C. Platten -------------------------------------- Donald C. Platten, Chairman of the Board /s/ John B. Wynne -------------------------------------- John B. Wynne Secretary [Corporate Seal] 15 16 STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK )
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B. WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and know the contents thereof and the statements therein contained are true. /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary Subscribed and sworn to before me this day of 1977. - -------------------------------------- Notary Public 16 17 I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of the Organization Certificate of under Section 8005 of the Banking Law" dated as of 19 , providing for increase of capital stock from $ to IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Banking Department of New York, N.Y., this 14th day of September 1982 /s/ PETER M. PHILBIN -------------------------------------- Peter M. Philbin Deputy Superintendent of Banks 17 18 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW We, DONALD C. PLATTEN and JOHN B. WYNNE, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The date on which the Organization Certificate of the Corporation was filed by the Superintendent of Banks of the State of New York is November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1977. 5. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on January 29, 1981. 6. Paragraph THIRD of the Organization Certificate of the Corporation, as amended, stating that the amount of its authorized capital stock is $203,580,000 and the number of shares into which such capital stock is to be divided is 16,965,000 shares, each of the same class and of the par value of $12 per share, is hereby amended to read as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $287,580,000 and the number of shares into which such capital stock is to be divided is 23,965,000 shares, each of the same class and of the par value of $12 per share." 7. This amendment to the Organization Certificate was approved by the votes cast in person or by proxy at a special stockholders' meeting, duly held as of September 8, 1982, by the holders of record of all the outstanding shares of the capital stock of the Corporation. IN WITNESS WHEREOF, the undersigned have executed this Certificate this 9th day of September 1982. /s/ DONALD C. PLATTEN -------------------------------------- Donald C. Platten, Chairman of the Board /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary [Corporate Seal] 18 19 STATE OF NEW YORK, ) COUNTY OF NEW YORK ) SS.:
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B. WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and know the contents thereof and the statements therein contained are true. /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary Subscribed and sworn to before me this 9th day of September 1982. - -------------------------------------- Notary Public 19 20 STATE OF NEW YORK BANKING DEPARTMENT I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed certificate entitled "Certificate of Amendment of the Organization Certificate of Chemical Bank under Section 8005 of the Banking Law" dated February 28, 1985 providing for increase of capital stock from $287,580,000, consisting of 23,965,000 shares of the par value of $12 per share, to $315,000,000, consisting of 25,000,000 shares of the same par value and 15,000,000 shares of preferred stock, par value of $1 per share, with such terms as may be approved by the Board at the time of issuance of any class or series of such preferred stock. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 13th day of March in the Year of our Lord one thousand nine hundred and eighty-five. 20 21 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW We, WALTER V. SHIPLEY and JOHN B. WYNNE, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The date on which the Organization Certificate of the Corporation was filed by the Superintendent of Banks of the State of New York is November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1977. 5. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on January 29, 1981. 6. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1982. 7. Paragraph THIRD of the Organization Certificate of the Corporation, as amended, stating that the amount of its authorized capital stock is $287,580,000 and the number of shares into which such capital stock is to be divided is 23,965,000 shares, each of the same class and of the par value of $12 per share, is hereby amended to read as follows: "THIRD: The amount of authorized capital stock which the Corporation hereafter is to have is $315,000,000 and the number of shares into which such capital stock is to be divided is 40,000,000 shares consisting of 25,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, which shall be issued in one or more classes or series having such designations, relative rights, preferences or limitations as fixed by the Board of Directors of the Corporation at the time of issuance of any such Preferred Stock." 8. This amendment to the Organization Certificate was approved by a resolution adopted by the written consent of Chemical New York Corporation, the sole stockholder of the Corporation, on February 28, 1985. 21 22 IN WITNESS WHEREOF, the undersigned have executed this Certificate this 28th day of February 1985. /s/ WALTER V. SHIPLEY -------------------------------------- Walter V. Shipley Chairman of the Board /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary [Corporate Seal] 22 23 STATE OF NEW YORK BANKING DEPARTMENT I, CARMINE M. TENGA, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "Certificate of Amendment of the Organization Certificate of CHEMICAL BANK under Section 8005 of the New York Banking Law," dated December 2, 1991, providing for the following: (1) An increase in capital stock from $315,000,000, consisting of 25,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, to $699,000,000, consisting of 57,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share; and (2) The location of the Principal office as New York, New York. WITNESS, my hand and official seal of the Banking Department of the City of New York, this 4th day of June in the Year of our Lord one thousand nine hundred and ninety-two /s/ CARMINE M. TENGA -------------------------------------- Carmine M. Tenga Deputy Superintendent of Banks 23 24 STATE OF NEW YORK, ) COUNTY OF NEW YORK, ) SS.:
I, JOHN B. WYNNE, being duly sworn, depose and say that I, the said JOHN B. WYNNE, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and know the contents thereof and the statements therein contained are true. /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary Subscribed and sworn to before me this 3rd day of December 1977. - -------------------------------------- Notary Public 24 25 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW WE, WALTER V. SHIPLEY and JOHN B. WYNNE, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1977. 5. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on January 29, 1981. 6. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1982. 7. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on March 13, 1985. 8. Article SECOND of the Organization Certificate, stating that the place where the Corporation's office is to be located is 20 Pine Street, New York, New York, is hereby amended and restated to read in its entirety as follows: "SECOND: The principal office of the Corporation is to be located in New York, New York." 9. Article THIRD of the Organization Certificate, as amended, stating that the amount of its authorized capital stock is $315,000,000 and the number of shares into which such capital stock is to be divided is 40,000,000 shares consisting of 25,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, is hereby amended and restated to read in its entirety as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $699,000,000 and the number of shares into which such capital stock is to be divided is 72,000,000 shares consisting of 57,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, which shall be issued in one or more classes or series having such designations, relative rights, preferences or limitations as fixed by the Board of Directors of the Corporation at the time of issuance of any such Preferred Stock." 10. These amendments to the Organization Certificate were approved by a resolution adopted by the written consent of Chemical Banking Corporation, the sole stockholder of the Corporation, on December 2, 1991. 25 26 IN WITNESS WHEREOF, the undersigned have executed this Certificate this 2nd day of December 1991. /s/ WALTER V. SHIPLEY -------------------------------------- Walter V. Shipley Chairman of the Board /s/ JOHN B. WYNNE -------------------------------------- John B. Wynne Secretary 26 27 STATE OF NEW YORK BANKING DEPARTMENT I, PETER M. PHILBIN, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE BANKING LAW" dated July 10, 1996 providing for a change in name from CHEMICAL BANK to THE CHASE MANHATTAN BANK and an increase in authorized capital stock from $699,000,000, consisting of 15,000,000 shares with a par value of $1 each designated as Preferred Stock and 57,000,000 shares with a par value of $12 each designated as Common Stock to $1,335,000,000 consisting of 15,000,000 shares with a par value of $1 each designated as Preferred Stock and 110,000,000 shares with a par value of $12 each designated as Common Stock. Such name change and increase in capital stock is to be effective July 13, 1996 WITNESS, my hand and official seal of the Banking Department at the City of New York, this 11th day of July in the Year of our Lord one thousand nine hundred and ninety-six /s/ PETER M. PHILBIN -------------------------------------- Peter M. Philbin Deputy Superintendent of Banks 27 28 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF CHEMICAL BANK UNDER SECTION 8005 OF THE NEW YORK BANKING LAW We, WALTER V. SHIPLEY and ANTHONY J. HORAN, being, respectively, the Chairman of the Board and the Secretary of CHEMICAL BANK, a New York banking organization, do hereby certify as follows: 1. The name of the Corporation is Chemical Bank. 2. The Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on November 26, 1968. 3. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on February 17, 1969. 4. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1977. 5. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on January 29, 1981. 6. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on September 8, 1982. 7. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on March 13, 1985. 8. A Certificate of Amendment of the Organization Certificate of Chemical Bank was filed by the Superintendent of Banks of the State of New York on June 4, 1992. 9. Article FIRST of the Organization Certificate, stating that the name by which the Corporation is to be known is CHEMICAL BANK, is hereby amended and restated to read in its entirety as follows: "FIRST: The name by which the Corporation is to be known is THE CHASE MANHATTAN BANK." 10. Article THIRD of the Organization Certificate, as amended, stating that the amount of its authorized stock which the Corporation is hereafter to have is $699,000,000 and the number of shares into which such capital stock is to be divided is 72,000,000 shares consisting of 57,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, which shall be issued in one of more classes or series having such designations, relative rights, preferences or limitations as fixed by the Board of Directors of the Corporation at the time of issuance of any such Preferred Stock, is hereby amended and restated to read in its entirety as follows: "THIRD: The amount of authorized capital stock which the Corporation is hereafter to have is $1,335,000,000 and the number of shares into which such capital stock is to be divided is 125,000,000 shares consisting of 110,000,000 shares of Common Stock, par value $12 per share, and 15,000,000 shares of Preferred Stock, par value $1 per share, which shall be issued in one or more classes or series having such designations, relative rights, preferences or limitations as fixed by the Board of Directors of the Corporation at the time of issuance of any such Preferred Stock." 11. These amendments to the Organization Certificate were approved by a resolution adopted by the written consent of The Chase Manhattan Corporation, the sole stockholder of the Corporation, on July 3, 1996. 28 29 IN WITNESS WHEREOF, the undersigned have executed this Certificate this 10th day of July, 1996. /s/ WALTER V. SHIPLEY -------------------------------------- Walter V. Shipley Chairman of the Board /s/ ANTHONY J. HORAN -------------------------------------- Anthony J. Horan Secretary 29 30 I, ANTHONY J. HORAN, being duly sworn, depose and say that I, the said ANTHONY J. HORAN, am the Secretary of CHEMICAL BANK, and that I have read and signed the foregoing Certificate and know the contents thereof and the statements therein contained are true. /s/ ANTHONY J. HORAN -------------------------------------- Anthony J. Horan Secretary Subscribed and sworn to before me this 10th day of July 1996. /s/ VIRGINIA STANK - -------------------------------------- Virginia Stank Secretary 30 31 BY-LAWS THE CHASE MANHATTAN BANK (FORMERLY KNOWN AS CHEMICAL BANK) AS AMENDED THROUGH JULY 16, 1996 32 CONTENTS
ARTICLE SUBJECT PAGE - ------- -------------------------------------------------------------------------------- ---- I MEETINGS OF STOCKHOLDERS Section 1.01 Annual Meeting.................................................... Section 1.02 Special Meetings.................................................. Section 1.03 Quorum............................................................ II BOARD OF DIRECTORS Section 2.01 Number............................................................ Section 2.02 Vacancies......................................................... Section 2.03 Annual Meeting.................................................... Section 2.04 Regular Meetings.................................................. Section 2.05 Special Meetings.................................................. Section 2.06 Quorum............................................................ Section 2.07 Rules and Regulations............................................. Section 2.08 Compensation...................................................... III COMMITTEES Section 3.01 Executive Committee............................................... Section 3.02 Examining Committee............................................... Section 3.03 Other Committees.................................................. IV OFFICERS AND AGENTS Section 4.01 Officers.......................................................... Section 4.02 Clerks and Agents................................................. Section 4.03 Term of Office.................................................... Section 4.04 Chairman of the Board............................................. Section 4.05 President......................................................... Section 4.06 Vice Chairman of the Board........................................ Section 4.07 Chief Financial Officer........................................... Section 4.08 Controller........................................................ Section 4.09 Secretary......................................................... Section 4.10 General Auditor................................................... Section 4.11 Powers and Duties of Other Officers............................... Section 4.12 Fidelity Bonds.................................................... V CORPORATE SEAL VI FISCAL YEAR VII INDEMNIFICATION Section 7.01 Right of Indemnification.......................................... Section 7.02 Contracts and Funding............................................. Section 7.03 Employee Benefit Plans............................................ Section 7.04 Indemnification Not Exclusive Right............................... Section 7.05 Advancement of Expenses; Procedures............................... VII BY-LAWS Section 8.01 Inspection........................................................ Section 8.02 Amendments........................................................ Section 8.03 Construction......................................................
(ii) 33 BY-LAWS OF THE CHASE MANHATTAN BANK ARTICLE I MEETINGS OF STOCKHOLDERS SECTION 1.01. Annual Meeting. The annual meeting of stockholders of The Chase Manhattan Bank (herein called the Bank), shall be held in the Borough of Manhattan, City of New York, State of New York, within the first four months of each calendar year, on such date and at such time and place as the Board of Directors (herein called the Board), may determine, for the election of directors and the transaction of such other business as may properly come before the meeting. Notice of such meeting, stating the purpose or purposes thereof and the time when and the place where it is to be held and signed by the Chairman of the Board (herein called the Chairman), the President, a Vice Chairman of the Board or the Secretary or an Assistant Corporate Secretary of the Bank, shall be served by personal delivery upon each stockholder of record entitled to vote at such meeting not less than 10 nor more than 50 days before said meeting. SECTION 1.02. Special Meetings. A special meeting of the stockholders may be called at any time by the Board, the Chairman, the President, or a Vice Chairman of the Board, or upon the request in writing of the holders of record of not less than 40% of the outstanding capital stock. Notice of any special meeting, stating the time, place and purpose or purposes thereof, shall be given by personal delivery to the stockholders in the manner provided in Section 1.01 for the giving of notice of annual meetings of stockholders. In the case of any meeting of stockholders, annual or special, called for a purpose requiring other or further notice. Such notice shall be give as required by law. SECTION 1.03. Quorum. A majority of the outstanding common stock, represented in person or by proxy, shall constitute a quorum at any meeting of stockholders, unless otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned, without further notice. ARTICLE II. BOARD OF DIRECTORS SECTION 2.01. Number. The business and affairs of the Bank shall be managed by or under the direction of a Board of Directors, of such number as may be fixed from time to time by resolution adopted by the Board, but in no event less than 7 or more 25, selected, organized and continued in accordance with the provisions of the New York Banking Law. Each director hereafter elected shall hold office until the next annual meeting of the stockholders and until his successor is elected and has qualified, or until his death or until he shall resign or shall have been removed. SECTION 2.02. Vacancies. In case of any increase in the number of directors, the additional director or directors, and in case of any vacancy in the board due to death, resignation, removal, disqualification or any other cause, the successors to fill the vacancies, not exceeding one-third of the entire Board, shall be elected by a majority of the directors then in office. SECTION 2.03. Annual Meeting. An annual meeting of the directors shall be held each year, without notice, immediately following the annual meeting of stockholders. The time and place of such meeting shall be designated by the Board. At such meeting, the directors shall, after qualifying, elect from their own number a Chairman of the Board, a President and one or more Vice Chairmen of the Board, and shall elect or appoint such other officers authorized by these By-laws as they may deem desirable, and appoint the Committees specified in Article III hereof. The directors may also elect to serve at the pleasure of the Board, one or more Honorary Directors, not members of the Board. Honorary Directors of the Board shall be paid such compensation or such fees for attendance at meetings of the Board, and meetings of other committees of the Board, as the Board shall determine from time to time. 34 SECTION 2.04. Regular Meetings. The Board shall hold a regular meeting without notice at the principal office of the Bank on the third Tuesday in each month, with the exception of the month of August, at such time as shall be determined by the Board, unless another time or place within or without the State, shall be fixed by resolution of the Board. Should the day appointed for a regular meeting fall on a legal holiday, the meeting shall be held at the same time on the preceding day or on such other day as the Board may order. SECTION 2.05. Special Meetings. Special meetings of the Board shall be held whenever called by the Chairman, the President, a Vice Chairman of the Board, the Secretary or a majority of the directors at the time in office. A notice shall be given as hereinafter in this Section provided of each such special meeting, in which shall be stated the time and place of such meeting, but, except as otherwise expressly provided by law or by these By-laws, the purposes thereof need not be stated in such notice. Except as otherwise provided by law, notice of each such meeting shall be mailed to each director, addressed to him at his residence or usual place of business at least two (2) days before the day on which such meeting is to be held, or shall be sent addressed to him at such place by telegraph, cable, wireless or other form of recorded communication or be delivered personally or by telephone not later than noon of the calendar day before the day on which such meeting is to be held. At any regular or special meeting of the Board, or any committee thereof, one or more Board or committee members may participate in such meeting by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. This type of participation shall constitute presence in person at the meeting. Notice of any meeting of the Board shall not, however, be required to be given to any director who submits a signed waiver of notice whether before or after the meeting, or if he shall be present at such meeting; and any meeting of the Board shall be a legal meeting without any notice thereof having been given if all the directors of the Bank then in office shall be present thereat. SECTION 2.06. Quorum. One-third of the members of the entire Board, or the next highest integer in the event of a fraction, shall constitute a quorum, but if less than a quorum be present, a majority of those present may adjourn any meeting from time to time and the meeting may be held as adjourned without further notice. SECTION 2.07 Rules and Regulations. The Board may adopt such rules and regulations for the conduct of its meetings and the management of the affairs of the Bank as it may deem proper, not inconsistent with the laws of the State of New York or these By-laws. SECTION 2.08. Compensation. Directors shall be entitled to receive from the Bank such fees for attendance at meetings of the Board or of any committee, or both, as the Board from time to time determine. The Board may also likewise provide that the Bank shall reimburse each such director or member of such committee for any expenses paid by him on account of his attendance at any such meeting. Nothing in this Section contained shall be construed to preclude any director from serving the Bank in any other capacity and receiving compensation therefor. ARTICLE III COMMITTEES SECTION 3.01. Executive Committee. The Board, by resolution adopted by a majority of the entire Board, shall appoint an Executive Committee which, when the Board is not in session, shall have and may exercise all the powers of the Board that lawfully may be delegated including, without limitation, the power and authority to declare dividends. The Executive Committee shall consist of such number of directors as the Board shall from time to time determine, but not less than five and one of whom shall be designated by the Board as Chairman thereof, as follows: (a) the Chairman of the Board, the President, the Vice Chairmen of the Boar, and (b) such other directors, none of whom shall be an officer of the Bank, as shall be appointed to serve at the pleasure of the Board. The Board, by resolution adopted by a minority of the entire Board, may designate one or more directors as alternate members of the Executive Committee and the manner and circumstances in which such alternate members shall replace or act in the place of absent or disqualified members of the Executive Committee. The attendance of one-third of the members of the Committee or their 2 35 substitutes, or the next highest integer in the event of a fraction, at any meeting shall constitute a quorum, and the act of a majority of those present at a meeting thereof at which a quorum is present shall be the act of the Committee. All acts done and powers conferred by the Committee from time to time shall be deemed to be, and may be certified as being done or conferred under authority of the Board. The Committee shall fix its own rules and procedures, and the minutes of the meetings of the Committee shall be submitted at the next regular meeting of the Board at which a quorum is present, or if impracticable at the next such subsequent meeting. The Committee shall hold meetings "On Call and such meetings may be called by the Chairman of the Executive Committee, the Chairman of the Board, the President, a Vice Chairman of the Board, or the Secretary. Notice of each such meeting of the Committee shall be given by mail, telegraph, cable, wireless or other form of recorded communication or be delivered personally or by telephone to each member of the Committee not later than the day before the day on which such meeting is to be held. Notice of any such meeting need not be given to any member of the Committee who submits a signed waiver of notice whether before or after the meeting, or if he shall be present at such meeting; and any meeting of the Committee shall be a legal meeting without any notice thereof having been given, if all the members of the Committee shall be present thereat. In the case of any meeting, in the absence of the Chairman of the Executive Committee, such members as shall be designated by the Chairman of the Executive Committee or the Executive Committee shall act as Chairman of the meeting. SECTION 3.02. Examining Committee. The Board, by resolution adopted by a majority of the entire Board, shall appoint an Examining Committee composed of not less than three of its members, none of whom shall be an officer of the Bank, to hold office at its pleasure and one of whom shall be designated by the Board as chairman thereof. The Committee shall make such examination into the affairs of the Bank and its loans and discounts and make such reports in writing thereof as may be directed by the Board or required by the Banking Law. The attendance of one third of the members of the Committee, or the next highest integer in the event of a fraction, at any meeting shall constitute a quorum, and the act of a majority of those present at a meeting thereof at which a quorum is present shall be the act of the Committee. SECTION 3.03. Other Committees. The Board, by resolution adopted by a majority of the entire Board, may appoint, from time to time, such other committees composed of not less than three of its members for such purposes and with such duties and powers as the Board may determine. The attendance of one-third of the members of such other committees, or the next highest integer in the event of a fraction, at any meeting shall constitute a quorum, and the act of a majority of those present at a meeting thereof at which a quorum is present shall be the act ARTICLE IV OFFICERS AND AGENTS SECTION 4.01. Officers. The officers of the Bank shall be (a) a Chairman of the Board, a President and one or more Vice Chairmen of the Board, each of whom must be a director and shall be elected by the Board; (b) a Chief Financial Officer, a Controller, a Secretary and a General Auditor, each of whom shall be elected by the Board; and (c) may include a Chief Credit Officer, a Chief Administrative Officer, a Chief Technology Officer, one or more Group Executives and such other officers as may from time to time be elected by the Board or under its authority, or appointed by the Chairman or the President or a Vice Chairman of the Board. SECTION 4.02. Clerks and Agents. The Board may elect and dismiss, or the Chairman or the President or a Vice Chairman of the Board may appoint and dismiss, or delegate to any other officers authority to appoint and dismiss, such clerks, agents and employees as may be deemed advisable for the prompt and orderly transaction of the Bank's business, and may prescribe, or authorize the appointing officers to prescribe, their respective duties, subject to the provisions of these By-laws. SECTION 4.03. Term of Office. The officers designated in Section 4.01 (a) shall be elected by the Board at its annul meeting. The officers designated in Section 4.01 (b) may be elected at the annual or any other meeting of the Board. The officers designated in Section 4.01 (c) may be elected at the annual or any other meeting of the Board or appointed at any time by the designated proper officers. Any vacancy occurring 3 36 in any office designated in Section 4.01 (a) may be filled at any regular or special meeting of the Board. The officers elected pursuant to Section 4.01 (a) shall each hold office for the term of one year and until their successors are elected, unless sooner disqualified or removed by a vote of two-thirds shall of the whole Board. The officers elected by the Board pursuant to Section 4.01 (b) of these By-laws shall hold office at the pleasure of the Board. All other officers, clerks, agents and employees elected by the Board, or appointed by the Chairman, the President or a Vice Chairman of the Board, or under their authority, shall hold their respective offices at the pleasure of the Board or officers elected pursuant to Section 4.01 (a). SECTION 4.04. Chairman of the Board. The Chairman shall be the chief executive officer of the Bank and shall have, subject to the control of the Board, general supervision and direction of the policies and operations of the Bank. He shall preside at all meetings of the stockholders and at all meetings of the Board. He shall have the right to execute any document or perform any act which could be or is required to be executed or performed by the President of the Bank. He shall have the power to sign checks, orders, contracts, leases, notes, drafts and other documents and instruments in connection with the business of the Bank, and together with the Secretary or an Assistant Corporate Secretary or execute conveyances of real estate and other documents and instruments to which the seal of the Bank is affixed. He shall perform such other duties as from time to time may be prescribed by the Board. SECTION 4.05. President. The President shall, subject to the direction and control of the Board and the Chairman, participate in the supervision of the policies and operations of the Bank. In general, the President shall perform all duties incident to the office of President, and such other duties as from time to time may be prescribed by the Board or the Chairman. In the absence of the Chairman, the President shall preside at meetings of stockholders and of the Board. The President shall have the same power to sign for the Bank as is prescribed in these By-laws for the Chairman. SECTION 4.06. Vice Chairman of the Board. The Vice Chairman of the Board, or if there be more than one, then each of them, shall, subject to the direction and control of the Board and the Chairman, participate in the supervision of the policies and operations of the Bank, and shall have other duties as may be prescribed from time to time by the Board or the Chairman. In the absence of the Chairman and the President, a Vice Chairman, as designated by the Chairman or the Board, shall preside at meetings of the stockholders and the Board. Each Vice Chairman have the same power to sign for the Bank as is prescribed in these By-laws for the Chairman. SECTION 4.07. Chief Financial Officer. The Chief Financial Officer shall have such powers and perform such duties as the Board, the Chairman, the President, or a Vice Chairman of the Board may from time to time prescribe, which duties may include, without limitation, responsibility for strategic planning, corporate finance, control, tax and auditing activities, and shall perform such other duties as may be prescribed by these By-laws. SECTION 4.08. Controller. The Controller shall exercise general supervision of the accounting departments of the Bank. He shall be responsible to the Chief Financial Officer and shall render reports from time to time relating to the general financial condition of the Bank. He shall render such other reports and perform such other duties as from time to time may be prescribed by the Chief Financial Officer, a Vice Chairman of the Board, the President or the Chairman. SECTION 4.09. Secretary. The Secretary shall: (a) record all the proceedings of the meetings of the stockholders, the Board and the Executive Committee in one or more books kept for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-laws or as required by law; (c) be custodian of the seal of the Bank; and he may see that such seal or a facsimile thereof is affixed to any documents the execution of which on behalf of the Bank is duly authorized and may attest such seal when so affixed; and 4 37 (d) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be prescribed by the Board and the Chairman. SECTION 4.10. General Auditor. The General Auditor shall exercise general supervision of the Auditing Division. He shall audit the affairs of the Bank and its subsidiaries, including appraisal of the soundness and adequacy of internal controls and operating procedures and shall ascertain the extent of compliance with policies and procedures of the Bank. He shall be responsible to the Board and shall make such audits and prepare such regular reports as the Board, its Examining Committee or the Chairman may, from time to time, require or as in his judgment are necessary in the performance of his duties. SECTION 4.11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Bank shall be those usually pertaining to their respective officers, subject to the direction and control of the Board and as otherwise provided in these By-laws. SECTION 4.12. Fidelity Bonds. The Board, in its discretion, may require any or all officers, agents, clerks and employees of the Bank to give bonds covering the faithful performance of their duties or may obtain insurance covering the same, in either case in form and amount approved by the Board, the premiums thereon to be paid by the Bank. ARTICLE V CORPORATE SEAL The corporate seal of the Bank shall be in the form of a circle and shall bear the full name of the Bank and the words "Corporate Seal New York" together with the logo of The Chase Manhattan Corporation. ARTICLE VI FISCAL YEAR The fiscal year of the Bank shall be the calendar year. 5 38 ARTICLE VII INDEMNIFICATION SECTION 7.01. Right to Indemnification. The Bank shall to the fullest extent permitted by applicable law as then in effect indemnify any person (the "Indemnitee") who was or is involved in any manner (including, without limitation, as a party or a witness), or is threatened to be made so involved, in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Bank to procure a judgment in its favor) (a "Proceeding") by reason of the fact that he is or was a director, officer, employee or agent of the Bank, or is or was serving at the request of the Bank as a director, officer or employee or agent of another corporation, partnership, joint venture, trust or other enterprise against all expenses (including attorney's fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such Proceeding. Such indemnification shall be a contract right and shall include the right to receive payment in advance of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect. SECTION 7.02. Contracts and Funding. The Bank may enter into contracts with any director, officer, employee or agent of the Bank in furtherance of the provisions of this Article VII and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article VII. SECTION 7.03. Employee Benefit Plans. For purposes of this Article VII, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Bank" shall include any service as a director, officer, employee, or agent of the Bank which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participant and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to be the best interests of a corporation. SECTION 7.04. Indemnification Not Exclusive Right. The right of indemnification and advancement of expenses provided in this Article VII shall not be exclusive of any other rights to which a person seeking indemnification may otherwise be entitled, under any statute, by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. The provisions of this Article VII shall inure to the benefit of the heirs and legal representatives of any person entitled to indemnity under this Article VII and shall be applicable to Proceedings commenced or continuing after the adoption of this Article VII whether arising from acts or omissions occurring before or after such adoption. SECTION 7.05. Advancement of Expenses: Procedures. In furtherance, but not limitation, of the foregoing provisions, the following procedures and remedies shall apply with respect to advancement of expenses and the right to indemnification under this Article VII: (a) Advancement of Expenses. All reasonable expenses incurred by or on behalf of the Indemnitee in connection with any Proceeding shall be advanced to the Indemnitee by the Bank within twenty (20) days after the receipt by the Bank of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the expense incurred by the Indemnitee and, if required by the law at the time of such advance, shall include or be accompanied by an undertaking by or on behalf of the Indemnitee to repay the amounts advanced if, and to the extent, it should ultimately be determined that the Indemnitee is not entitled to be indemnified against such expenses. (b) Written Request for Indemnification. To obtain indemnification under this Article VII, an Indemnitee shall submit to the Secretary of the Bank a written request, including such documentation and information as is reasonably available to the Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification (the "Supporting Documenta- 6 39 tion"). The determination of the Indemnitee's entitlement to indemnification shall be made within a reasonable time after receipt by the Bank of the written request for indemnification together with the Supporting Documentation. The Secretary of the Bank shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested indemnification. (c) Procedure for Determination. The Indemnitee's entitlement to indemnification under this Article VII shall be determined (i) by the Board by a majority vote of a quorum (as defined in Article VII of these By-laws) consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtained, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders, but only if a majority of the disinterested directors, if they constitute a quorum of the Board, presents the issue of entitlement to indemnification to the stockholders for their determination. ARTICLE VIII BY-LAWS SECTION 8.01. Inspection. A copy of the By-laws shall at all times be kept in a convenient place at the principal office of the Bank, and shall be open for inspection by stockholders during banking hours. SECTION 8.02. Amendments. Except as otherwise specifically provided by the statute, these Bylaws may be added to, amended, altered or repealed at any meeting of the Board by vote of a majority of the entire Board, provided that written notice of any such proposed action shall be given to each director prior to such meeting, or that notice of such addition, amendment, alteration or repeal shall have been given at the preceding meeting of the Board. SECTION 8.03. Construction. The masculine gender, where appearing in these By-laws, shall be deemed to include the feminine gender. I, JEAN E. RUGANI, Assistant Corporate Secretary of THE CHASE MANHATTAN BANK, New York, New York, hereby certify that the foregoing is a true and correct copy of the By-laws of said Bank and that said By-laws are in full force and effect on the date hereof. Dated: /s/ Jean E. Rugani -------------------------------------- Jean E. Rugani 7 40 EXHIBIT 7 TO FORM T-1 BANK CALL NOTICE RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF THE CHASE MANHATTAN BANK OF 270 PARK AVENUE, NEW YORK, NEW YORK 10017 AND FOREIGN AND DOMESTIC SUBSIDIARIES, A MEMBER OF THE FEDERAL RESERVE SYSTEM, AT THE CLOSE OF BUSINESS MARCH 31, 1996, IN ACCORDANCE WITH A CALL MADE BY THE FEDERAL RESERVE BANK OF THIS DISTRICT PURSUANT TO THE PROVISIONS OF THE FEDERAL RESERVE ACT.
DOLLAR AMOUNTS IN MILLIONS ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin........................... $ 3,391 Interest-bearing balances.................................................... 2,075 Securities: Held to maturity securities.................................................... 3,607 Available for sale securities.................................................. 29,029 Federal Funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds sold........................................................... 1,264 Securities purchased under agreements to resell.............................. 354 Loans and lease financing receivables: Loans and leases, net of unearned income............................. $73,216 Less: Allowance for loan and lease losses............................ 1,854 Less: Allocated transfer risk reserve................................ 104 -------- Loans and leases, net of unearned income, allowance, and reserve............. 71,258 Trading Assets................................................................. 25,919 Premises and fixed assets (including capitalized leases)....................... 1,337 Other real estate owned........................................................ 30 Investments in unconsolidated subsidiaries and associated companies............ 187 Customer's liability to this bank on acceptances outstanding................... 1,082 Intangible assets.............................................................. 419 Other assets................................................................... 7,406 -------- Total Assets......................................................... $147,358 ========
41
DOLLAR AMOUNTS -------------- (IN MILLIONS) LIABILITIES Deposits In domestic offices................................................. $ 45,786 Noninterest-bearing................................................. $14,972 Interest-bearing.................................................... 30,814 ------- In foreign offices, Edge and Agreement subsidiaries, and IBF's...... 36,550 Noninterest-bearing................................................. $ 202 Interest-bearing.................................................... 36,348 ------- Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds purchased............................................. 11,412 Securities sold under agreements to repurchase...................... 2,444 Demand notes issued to the U.S. Treasury.............................. 699 Trading liabilities................................................... 19,998 Other Borrowed money: With a remaining maturity of one year or less....................... 11,305 With a remaining maturity of more than one year..................... 130 Mortgage indebtedness and obligations under capitalized leases........ 13 Bank's liability on acceptances executed and outstanding.............. 1,089 Subordinated notes and debentures..................................... 3,411 Other liabilities..................................................... 6,778 TOTAL LIABILITIES........................................... 139,615 -------- EQUITY CAPITAL Common stock.......................................................... 620 Surplus............................................................... 4,664 Undivided profits and capital reserves................................ 3,058 Net unrealized holding gains (Losses) on available-for-sale securities.......................................................... (607) Cumulative foreign currency translation adjustments................... 8 TOTAL EQUITY CAPITAL........................................ 7,743 -------- TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY CAPITAL................................................... $147,358 ========
42 I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WALTER V. SHIPLEY ) EDWARD D. MILLER ) Directors THOMAS L. LABRECQUE )
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