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<SEC-DOCUMENT>0000950168-96-000536.txt : 19960401
<SEC-HEADER>0000950168-96-000536.hdr.sgml : 19960401
ACCESSION NUMBER: 0000950168-96-000536
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 23
CONFORMED PERIOD OF REPORT: 19951231
FILED AS OF DATE: 19960329
SROS: AMEX
SROS: NYSE
SROS: PSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: NATIONSBANK CORP
CENTRAL INDEX KEY: 0000070858
STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021]
IRS NUMBER: 560906609
STATE OF INCORPORATION: NC
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-06523
FILM NUMBER: 96540984
BUSINESS ADDRESS:
STREET 1: NATIONSBANK CORPORATE CENTER
STREET 2: NC1007 19 04
CITY: CHARLOTTE
STATE: NC
ZIP: 28255
BUSINESS PHONE: 7043865000
MAIL ADDRESS:
STREET 1: NATIONALSBANK CORPORATE CENTER
STREET 2: NC1007 19 04
CITY: CHARLOTTE
STATE: NC
ZIP: 28255
FORMER COMPANY:
FORMER CONFORMED NAME: NCNB CORP
DATE OF NAME CHANGE: 19920107
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<DESCRIPTION>NATIONSBANK 10-K #42408.1
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1995 -- Commission File Number 1-6523
NATIONSBANK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
North Carolina 56-0906609
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
NationsBank Corporate Center
Charlotte, North Carolina 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
704 / 386-5000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
<S> <C>
Common Stock New York Stock Exchange
Pacific Stock Exchange
Tokyo Stock Exchange
7 3/4% Debentures, due 2002 American Stock Exchange
8 1/2% Notes, due 1996 New York Stock Exchange
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 of the Securities Exchange Act of 1934 during the
preceding 12 months, and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of the Form 10-K or in any amendment to
this Form 10-K. ( )
Aggregate market value of shares of voting stock held by all persons, other than
shares beneficially owned by persons who may be deemed to be affiliates (as
defined in SEC Rule 405), is approximately $21,637,312,000 computed by reference
to the closing price of Common Stock of $74.00 per share on March 15, 1996, on
the New York Stock Exchange Composite Transactions List, as reported in
published financial sources, and a stated price of $42.50 for the ESOP
Convertible Preferred Stock, Series C.
Of the registrant's only class of Common Stock, there were 300,462,332 shares
outstanding as of March 1, 1996.
DOCUMENTS INCORPORATED BY REFERENCE
<TABLE>
<CAPTION>
DOCUMENT OF THE REGISTRANT FORM 10-K REFERENCE LOCATIONS
<S> <C>
1995 Annual Report to Shareholders PARTS I, II and IV
1996 Proxy Statement PART III
</TABLE>
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
The registrant is a North Carolina corporation and a bank holding company
registered under the Bank Holding Company Act of 1956, as amended (the "Act"),
with its principal assets being the stock of its subsidiaries. Through its
banking subsidiaries (the "Banks") and its various non-banking subsidiaries, the
registrant provides banking and banking-related services, primarily throughout
the Southeast and Mid-Atlantic states and Texas. The principal executive offices
of the registrant are located at NationsBank Corporate Center in Charlotte,
North Carolina 28255.
ACQUISITIONS AND DISPOSITIONS
On March 31, 1995, the registrant's mortgage banking subsidiary acquired a
$10 billion residential mortgage servicing portfolio from Source One Mortgage
Services Corporation at a purchase price of approximately $190 million.
On March 31, 1995, the registrant's mortgage banking subsidiary acquired
the residential mortgage servicing business of KeyCorp Mortgage Inc. from
KeyCorp and Key Bank of New York. The acquired assets included primarily a $25
billion residential mortgage servicing portfolio, for which the registrant's
subsidiary paid approximately $339 million, and a mortgage servicing operation
employing about 430 people and other servicing-related assets, for which this
subsidiary paid approximately $150 million.
The registrant and BankAmerica Corporation formed MECA Software LLC
("MECA"), and, on June 30, 1995, MECA purchased MECA Software, Inc. and its
"Managing Your Money" software for an aggregate purchase price of approximately
$35 million. First Bank System, Fleet Financial Group and Royal Bank of Canada
subsequently joined MECA.
On December 4, 1995, the registrant completed the sale of the portion of
its corporate trust business that deals with bond servicing and administration
to The Bank of New York.
On December 13, 1995, the registrant completed the acquisition of
Intercontinental Bank ("ICBK"). As of the acquisition date, ICBK had assets of
approximately $1.1 billion and deposits of approximately $910 million. The
registrant issued 0.4153 shares of its common stock in exchange for each
outstanding share of ICBK common stock, for an aggregate purchase price of
approximately 3 million shares of the registrant's common stock.
On December 21, 1995, the registrant completed the acquisition of North
Florida Bank Corporation ("NFBC"). As of the acquisition date, NFBC had assets
of approximately $50 million and deposits of approximately $44 million. The
registrant issued 0.7797 shares of its common stock for each outstanding share
of NFBC common stock, for an aggregate purchase price of approximately 103,000
shares of the registrant's common stock.
On January 9, 1996, the registrant completed the acquisition of Bank South
Corporation ("BKSO"). As of the acquisition date, BKSO had assets of
approximately $7.4 billion and deposits of approximately $5.1 billion. The
registrant issued 0.44 shares of its common stock for each outstanding share of
BKSO common stock, for an aggregate purchase price of approximately 26 million
shares of the registrant's common stock.
On January 10, 1996, the registrant completed the acquisition of CSF
Holdings, Inc. ("CSF"). As of the acquisition date, CSF had assets of
approximately $4.8 billion and deposits of approximately $3.8 billion. The
purchase price was approximately $516 million and was paid in cash.
On January 25, 1996, the registrant entered into an agreement to acquire
Charter Bancshares, Inc. ("CBI") by exchanging each outstanding share of CBI
capital stock for 0.385 shares of the registrant's common stock, for an
aggregate purchase price of approximately 1.4 million shares of the registrant's
common stock. As of December 31, 1995, CBI had assets of approximately $915
million and deposits of approximately $734 million. Subject to certain
regulatory approvals, the approval of CBI's shareholders and other closing
conditions, this transaction is expected to be completed in the second quarter
of 1996.
1
<PAGE>
On January 31, 1996, the registrant completed the acquisition of Sun World,
N.A. ("Sun World"). As of the acquisition date, Sun World had assets of
approximately $136 million and deposits of approximately $123 million. The
purchase price was approximately $16 million and was paid in cash.
On February 15, 1996, the registrant, through NationsCredit Commercial
Corporation, its wholly owned, indirect subsidiary engaged primarily in the
commercial financial services business, entered into an agreement to acquire LDI
Corporation ("LDI") by purchasing all the outstanding shares of capital stock of
LDI at an aggregate purchase price of approximately $28 million, payable in
cash. As of October 31, 1995, LDI had assets of approximately $335 million.
Subject to certain regulatory approvals, the approval of LDI's shareholders and
other closing conditions, this transaction is expected to be completed in the
second quarter of 1996.
As part of its operations, the registrant regularly evaluates the potential
acquisition of, and holds discussions with, various financial institutions and
other businesses of a type eligible for bank holding company investment. In
addition, the registrant regularly analyzes the values of, and submits bids for,
the acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. As a general rule, the registrant
publicly announces such material acquisitions when a definitive agreement has
been reached.
OPERATIONS
The registrant provides a diversified range of banking and certain
nonbanking financial services and products through its various subsidiaries. The
registrant manages its business activities through three major business units:
the General Bank, Global Finance and Financial Services.
The General Bank provides comprehensive services in the commercial and
retail banking fields, including trust and private banking operations, the
origination and servicing of home mortgage loans, the issuance and servicing of
credit cards (through a Delaware subsidiary), indirect lending, dealer finance
and certain insurance services. The General Bank also offers full service
brokerage services and discount brokerage services and provides investment
advisory services to a proprietary mutual fund, as well as investment
management, banking and fiduciary services through subsidiaries of the
registrant. As of December 31, 1995, the General Bank operated approximately
1,833 banking offices through the following Banks: NationsBank, N.A. (serving
the States of North Carolina, South Carolina, Maryland and Virginia and the
District of Columbia); NationsBank, N.A. (South) (serving the States of Florida
and Georgia); NationsBank of Kentucky, N.A.; NationsBank of Tennessee, N.A; and
NationsBank of Texas, N.A. The General Bank also provides fully automated,
24-hour cash dispensing and depositing services throughout the states in which
it is located, through approximately 2,292 automated teller machines.
Global Finance provides comprehensive corporate banking and investment
banking services to domestic and international customers, including treasury
management, loan syndication, asset-backed lending, leasing, factoring and
arrangement of asset-backed and project financing, as well as underwriting,
trading or distributing a wide range of securities (including bank-eligible
securities and, to a limited extent, bank-ineligible securities as authorized by
the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") under Section 20 of the Glass-Steagall Act), and trading and
distributing a wide range of derivative products in certain interest rate,
foreign exhange, commodity and equity markets. Global Finance provides its
services through various offices located in major United States cities as well
as in London, Frankfurt, Singapore, Bogota, Mexico City, Grand Cayman, Nassau,
Seoul, Tokyo, Osaka, Taipei and Hong Kong.
Financial Services consists of NationsCredit Consumer Corporation (formerly
NationsCredit Corporation), primarily a consumer finance subsidiary, and
NationsCredit Commercial Corporation (formerly Greyrock Capital Group Inc.),
primarily a commercial finance subsidiary. NationsCredit Consumer Corporation,
which has approximately 371 offices located in 34 states, provides personal,
mortgage and automobile loans to consumers and retail finance programs to
dealers. NationsCredit Commercial Corporation consists of six divisions that
specialize in one or more of the following areas: equipment loans and leasing;
loans for debt restructuring, mergers and acquisitions and working capital; real
estate, golf/recreational and health care financing; and inventory financing to
manufacturers, distributors and dealers.
2
<PAGE>
Additional information about the registrant and its operations is
incorporated by reference from Table Two (page 16) and the narrative comments
under the caption "Management's Discussion and Analysis -- Business Unit
Operations" (pages 14 through 19) in the registrant's 1995 Annual Report to
Shareholders.
GOVERNMENT SUPERVISION AND REGULATION
GENERAL
As a registered bank holding company, the registrant is subject to the
supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which are subject to
regulation, supervision and examination by the Office of the Comptroller of the
Currency (the "Comptroller"). The Banks are also subject to regulation by the
Federal Deposit Insurance Corporation (the "FDIC") and other federal regulatory
agencies. In addition to banking laws, regulations and regulatory agencies, the
registrant and its subsidiaries and affiliates are subject to various other laws
and regulations and supervision and examination by other regulatory agencies,
all of which directly or indirectly affect the operations and management of the
registrant and its ability to make distributions. The following discussion
summarizes certain aspects of those laws and regulations that affect the
registrant.
Under the Act, the activities of the registrant, and those of companies
which it controls or in which it holds more than 5% of the voting stock, are
limited to banking or managing or controlling banks or furnishing services to or
performing services for its subsidiaries, or any other activity which the
Federal Reserve Board determines to be so closely related to banking or managing
or controlling banks as to be a proper incident thereto. In making such
determinations, the Federal Reserve Board is required to consider whether the
performance of such activities by a bank holding company or its subsidiaries can
reasonably be expected to produce benefits to the public such as greater
convenience, increased competition or gains in efficiency that outweigh possible
adverse effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest or unsound banking practices. Generally, bank
holding companies, such as the registrant, are required to obtain prior approval
of the Federal Reserve Board to engage in any new activity or to acquire more
than 5% of any class of voting stock of any company.
The Act also requires bank holding companies to obtain the prior approval
of the Federal Reserve Board before acquiring more than 5% of any class of
voting stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), which became effective
September 29, 1995, a bank holding company may acquire banks in states other
than its home state subject to any state requirement that the bank has been
organized and operating for a minimum period of time, not to exceed five years,
and the requirement that the bank holding company, prior to or following the
proposed acquisition, controls no more than 10% of the total amount of deposits
of insured depository institutions in the United States and no more than 30% of
such deposits in that state (or such lesser or greater amount set by state law).
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, thereby creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity either to "opt out"
of this provision, thereby prohibiting interstate branching in such states, or
to "opt in" at an earlier time, thereby allowing interstate branching within
that state prior to June 1, 1997. Furthermore, pursuant to the Interstate
Banking and Branching Act, a bank is now able to open new branches in a state in
which it does not already have banking operations if such state enacts a law
permitting such DE NOVO branching.
As previously described, the registrant regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. In 1995, several bills were introduced in
Congress that would have the effect of broadening the securities underwriting
powers of bank holding companies and, possibly, permitting bank holding
companies to engage in nonfinancial activities. The likelihood and timing of any
such proposals or bills and the impact they might have on the registrant and its
subsidiaries cannot be determined at this time.
3
<PAGE>
CAPITAL AND OPERATIONAL REQUIREMENTS
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, those regulatory agencies may
from time to time require that a banking organization maintain capital above the
minimum levels, whether because of its financial condition or actual or
anticipated growth. The guidelines are summarized in the narrative comments
under the caption "Capital Resources and Capital Management" (page 40) set forth
in the 1995 Annual Report to Shareholders of the registrant which are hereby
incorporated by reference.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent's general unsecured creditors. In addition, FDICIA requires the
various regulatory agencies to prescribe certain non-capital standards for
safety and soundness relating generally to operations and management, asset
quality and executive compensation and permits regulatory action against a
financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6 percent, a total capital ratio of at
least 10 percent and a leverage ratio of at least 5 percent and not be subject
to a capital directive order. An "adequately capitalized" institution must have
a Tier 1 capital ratio of at least 4 percent, a total capital ratio of at least
8 percent and a leverage ratio of at least 4 percent, or 3 percent in some
cases. Under these guidelines, each of the Banks is considered adequately or
well capitalized.
Banking agencies have also adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. That
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have proposed amendments to
existing risk-based capital regulations to provide for the consideration of
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position) in the determination of a bank's minimum capital
requirements. This proposal, while still under consideration, would require
banks with interest rate risk in excess of defined thresholds to maintain
additional capital beyond that generally required.
DISTRIBUTIONS
The registrant's funds for cash distributions to its shareholders are
derived from a variety of sources, including cash and temporary investments. The
primary source of such funds, however, is dividends received from the Banks. The
amount of dividends that each Bank may declare in a calendar year without
approval of the Comptroller is the Bank's net profits for that year, as defined
by statute, combined with its net retained profits, as defined, for the
preceding two years. In addition, from time to time the registrant applies for,
and may receive, permission from the Comptroller for one or more of the Banks to
declare special dividends. In 1996, the Banks can initiate dividend payments,
without prior regulatory approval, of up to an aggregate of $905 million plus an
additional amount equal to their net profits for 1996 up to the date of any such
dividend declaration.
4
<PAGE>
In addition to the foregoing, the ability of the registrant and the Banks
to pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA, as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of the registrant, its shareholders and its
creditors to participate in any distribution of the assets or earnings of its
subsidiaries is further subject to the prior claims of creditors of the
respective subsidiaries.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies are
expected to act as a source of financial strength to each subsidiary bank and to
commit resources to support each such subsidiary. This support may be required
at times when a bank holding company may not be able to provide such support.
Similarly, under the cross-guarantee provisions of the Federal Deposit Insurance
Act, in the event of a loss suffered or anticipated by the FDIC -- either as a
result of default of a banking or thrift subsidiary of the registrant or related
to FDIC assistance provided to a subsidiary in danger of default -- the other
Banks may be assessed for the FDIC's loss, subject to certain exceptions.
ADDITIONAL INFORMATION
The following information set forth in the 1995 Annual Report to
Shareholders of the registrant is hereby incorporated by reference:
Table Three (page 18) for average balance sheet amounts, related
taxable-equivalent interest earned or paid, and related average yields
earned and rates paid.
Table Four (page 20) and the narrative comments under the caption "Net
Interest Income" (page 19) for changes in taxable-equivalent interest
income and expense for each major category of interest-earning assets and
interest-bearing liabilities.
The narrative comments under the caption "Securities" (pages 25 and
26) and Note Three (pages 54 through 56) of the Notes To Consolidated
Financial Statements for information on the book values, maturities and
weighted average yields of the securities (by category) of the registrant.
Tables Eight (page 26), Nine (page 27) and Twenty (page 39) for
distribution of loans and leases, selected loan maturity data and
interest-rate risk.
Table Fifteen (page 34), the narrative comments under the caption
"Credit Risk Management And Credit Portfolio Review -- Nonperforming
Assets" (pages 33 and 34), and Note One (page 52) of the Notes To
Consolidated Financial Statements for information on the nonperforming
assets of the registrant. The narrative comments under the captions "Credit
Risk Management And Credit Portfolio Review" (pages 31 and 32) and "Loans
and Leases" (pages 26 and 27) and Tables Seventeen, Eighteen and Nineteen
(pages 36 and 37) for a discussion of the characteristics of the loan and
lease portfolio.
Tables Thirteen (page 32) and Fourteen (page 33), the narrative
comments under the captions "Provision for Credit Losses" (page 19) and
"Credit Risk Management And Credit Portfolio Review -- Allowance for Credit
Losses" (pages 32 and 33) and Note One (page 52) of the Notes To
Consolidated Financial Statements for information on the credit loss
experience of the registrant.
Table Three (page 18) and the narrative comments under the caption
"Deposits" (page 27) for deposit information.
"Six-Year Consolidated Statistical Summary" (page 69) for return on
assets, return on equity and dividend payout ratio for 1990 through 1995,
inclusive.
Table Ten (page 28) and Note Six (pages 58 and 59) of the Notes To
Consolidated Financial Statements for information on the short-term
borrowings of the registrant.
All tables, graphs, charts, summaries and narrative on pages 14
through 45 and pages 68 and 69 for additional data on the consolidated
operations of the registrant and its majority-owned subsidiaries.
5
<PAGE>
COMPETITION
The activities in which the registrant and its three major business units
(the General Bank, Global Finance and Financial Services) engage are highly
competitive. Generally, the lines of activity and markets served involve
competition with other banks and non-bank financial institutions, such as
investment banking firms, brokerage firms, mutual funds and insurance companies,
as well as other entities which offer financial services, located both within
and without the United States. The methods of competition center around various
factors, such as customer services, interest rates on loans and deposits,
lending limits and location of offices.
The commercial banking business in the various local markets served by the
registrant's three major business units is highly competitive. The General Bank,
Global Finance and Financial Services compete with other commercial banks,
savings and loan associations, finance companies and other businesses which
provide similar services. The three major business units actively compete in
commercial lending activities with local, regional and international banks and
non-bank financial organizations, some of which are larger than certain of the
registrant's non-banking subsidiaries and the Banks. In its consumer lending
operations, the competitors of the three major business units include other
banks, savings and loan associations, credit unions, regulated small loan
companies and other non-bank organizations offering financial services. In the
investment banking, investment advisory and brokerage business, the registrant's
non-banking subsidiaries compete with other banking and investment banking
firms, investment advisory firms, brokerage firms and mutual funds. The
registrant's mortgage banking subsidiary competes with commercial banks, savings
and loan associations, government agencies, mortgage brokers and other non-bank
organizations offering mortgage banking services. In the trust business, the
Banks compete with other banks, investment counselors and insurance companies in
national markets for institutional funds and corporate pension and profit
sharing accounts. The Banks also compete with other banks, insurance agents,
financial counselors and other fiduciaries for personal trust business. The
registrant and its three major business units also actively compete for funds. A
primary source of funds for the Banks is deposits, and competition for deposits
includes other deposit taking organizations, such as commercial banks, savings
and loan associations and credit unions, as well as money market mutual funds.
The registrant's ability to expand into additional states remains subject
to various federal and state laws. See "Government Supervision and
Regulation -- General" for a more detailed discussion of interstate banking and
branching legislation and certain state legislation.
EMPLOYEES
At December 31, 1995, the registrant and its subsidiaries had 58,322
full-time equivalent employees. Of the foregoing employees, 32,763 were employed
by the General Bank, 5,429 were employed by Global Finance, 2,744 were employed
by Financial Services, 13,300 were employed by NationsBanc Services, Inc. (a
subsidiary providing operational support services to the registrant and its
subsidiaries) and the remainder were employed by the registrant holding company
and the registrant's other subsidiaries.
ITEM 2. PROPERTIES
The principal offices of the registrant are located in the 60-story
NationsBank Corporate Center in Charlotte, North Carolina, which is owned by a
subsidiary of the registrant. The registrant occupies approximately 512,000
square feet at market rates under a lease which expires in 2002, and
approximately 593,000 square feet of office space is available for lease to
third parties at market rates. At December 31, 1995, approximately 99 percent
was occupied by the registrant or subject to existing third party leases or
letters of intention to lease.
The principal North Carolina offices of NationsBank, N.A. are located in
leased space in the 40-story NationsBank Plaza, Charlotte, North Carolina.
NationsBank, N.A. is the major tenant of the building with approximately 669,000
square feet of the net rentable space, of which approximately 438,000 square
feet of space is under a lease which expires in 2009 and the remaining space is
under leases of shorter duration.
The principal South Carolina offices of NationsBank, N.A. are located in
approximately 91,000 square feet of leased space in the NationsBank Tower in
Columbia under a lease which is in the process of being renewed. NationsBank,
N.A., through subsidiaries, owns partnership interests in the building and the
underlying land. In addition, NationsBank, N.A. maintains offices in
approximately 81,000 square feet of leased space
6
<PAGE>
in NationsBank Plaza in Columbia under a lease that expires in 1999.
NationsBank, N.A. has four five-year renewal options on this space.
The principal Virginia offices of NationsBank, N.A. are located in
approximately 383,000 square feet of space in NationsBank Center in Richmond,
Virginia, a facility that is owned by NationsBank, N.A. The remaining
approximately 157,000 square feet are leased to a third party tenant.
The principal Maryland offices of NationsBank, N.A. are located in
approximately 135,000 square feet of leased space in the Rockledge Executive
Center in Bethesda under a lease that expires in 2002. NationsBank, N.A. has two
five-year renewal options on this space. The approximately 19,000 square feet of
space remaining is occupied by third parties under sub-leases with NationsBank,
N.A. The sub-leases, which are at market rates, expire in 1997 and 2002.
The principal offices of NationsBank of Texas, N.A. ("NationsBank Texas")
are located in approximately 680,000 square feet of leased space in the 72-story
NationsBank Plaza in Dallas. NationsBank Texas is the major tenant of the
building under a lease which expires in 2001 with renewal options through 2011.
The principal Florida offices of NationsBank, N.A. (South) ("NationsBank
South") are located in approximately 238,000 square feet of leased space in the
NationsBank Plaza in downtown Tampa. The lease expires in 2005. NationsBank
South has four five-year renewal options on this space.
The principal Georgia offices of NationsBank South are located in leased
space in the 55-story NationsBank Plaza in Atlanta. The registrant, through a
subsidiary, is a partner in CSC Associates, L.P., a partnership that was formed
with Cousins Properties Incorporated for the development and ownership of the
office tower. NationsBank South is the major tenant of the building with
approximately 579,000 square feet of the net rentable space, under a lease that
expires in 2012. NationsBank South has three ten-year renewal options on this
space. Of the approximately 684,000 remaining square feet, 596,000 square feet
has been leased to third parties, with 88,000 remaining square feet available
for lease to third parties at market rates.
The principal offices of NationsBank of Tennessee, N.A. ("NationsBank
Tennessee") are located in approximately 220,000 square feet of leased space in
NationsBank Plaza in Nashville under a lease that expires in 2012. NationsBank
Tennessee has two ten-year and one five-year renewal options on this space.
The principal offices of NationsCredit Consumer Corporation are located in
approximately 136,000 square feet of space in Allentown, Pennsylvania in a
facility which it owns.
The principal offices of NationsCredit Commercial Corporation are located
in approximately 42,880 square feet of leased space in Canterbury Green in
Stamford, Connecticut, under a lease which expires in 1997.
As of December 31, 1995, the registrant and its subsidiaries conducted
their banking and bank-related activities in both leased and owned facilities
throughout the jurisdictions in which the Banks are located, as follows:
<TABLE>
<CAPTION>
APPROXIMATE APPROXIMATE
LEASED OWNED
FACILITIES FACILITIES
<S> <C> <C>
North Carolina, South Carolina, Virginia,
Maryland and the District of Columbia 673 366
Texas 203 152
Florida and Georgia 253 416
Tennessee 50 67
Delaware 1 0
Kentucky 3 3
</TABLE>
7
<PAGE>
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of business, the registrant and its subsidiaries are
routinely defendants in or parties to a number of pending and threatened legal
actions and proceedings, including several actions brought on behalf of various
classes of claimants. In certain of these actions and proceedings substantial
money damages are asserted against the registrant and its subsidiaries and
certain of these actions and proceedings are based on alleged violations of
consumer protection, securities, banking and other laws. Management believes,
based upon the advice of counsel, that these actions and proceedings and losses,
if any, resulting from the final outcome thereof, will not be material in the
aggregate to the registrant's financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to security holders in the fourth quarter
of the registrant's fiscal year.
ITEM 4A. EXECUTIVE OFFICERS OF THE REGISTRANT
Pursuant to the Instructions to Form 10-K and Item 401(b) of Regulation
S-K, the name, age and position of each executive officer and the principal
accounting officer of the registrant are listed below along with such officer's
business experience during the past five years. Officers are appointed annually
by the Board of Directors at the meeting of directors immediately following the
annual meeting of shareholders. There are no arrangements or understandings
between any officer and any other person pursuant to which any officer was
selected.
Fredric J. Figge, II, age 59, Chairman, Corporate Risk Policy of the
registrant and of the Banks. Mr. Figge was named Chairman, Corporate Risk Policy
in October, 1993 and prior to that time served as Chairman, Credit Policy of the
registrant and of the Banks. He first became an officer in 1987.
James H. Hance, Jr., age 51, Vice Chairman and Chief Financial Officer of
the registrant. Mr. Hance was named Chief Financial Officer in August, 1988,
also served as Executive Vice President from March, 1987 to December 31, 1991
and was named Vice Chairman in October, 1993. He first became an officer in
1987. He also serves as a director of NationsBank, N.A., NationsBank Tennessee
and various other subsidiaries of the registrant.
Kenneth D. Lewis, age 48, President of the registrant. Mr. Lewis was named
to his present position in October, 1993. Prior to that time, from June, 1990 to
October, 1993 he served as President of the registrant's General Bank. He first
became an officer in 1971. Mr. Lewis also serves as a director of NationsBank,
N.A., NationsBank South and NationsBank Texas.
Hugh L. McColl, Jr., age 60, Chairman of the Board and Chief Executive
Officer of the registrant and Chief Executive Officer of the Banks. He first
became an officer in 1962. Mr. McColl was Chairman of the registrant from
September, 1983 until December 31, 1991, and was re-appointed Chairman on
December 31, 1992. He also serves as a director of the registrant and
NationsBank Texas.
Marc D. Oken, age 49, Executive Vice President and Principal Accounting
Officer of the registrant. He first became an officer in 1989.
F. William Vandiver, Jr., age 54, President of NationsBank Global Finance,
which includes Corporate Finance, Capital Markets and Specialized Lending. Mr.
Vandiver was named President of NationsBank Global Finance in January, 1996. In
1984, he was named Investment Banking Company executive and president in 1988.
He has been an officer since 1968.
8
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED
SECURITY HOLDER MATTERS
The principal market on which the registrant's common stock (the "Common
Stock") is traded is the New York Stock Exchange. The registrant also listed
certain of its shares of Common Stock for trading on the Pacific Stock Exchange
and on the Tokyo Stock Exchange. The high and low sales prices of Common Stock
on the New York Stock Exchange Composite Transactions List, as reported in
published financial sources, for each quarterly period indicated below are as
follows:
<TABLE>
<CAPTION>
QUARTER HIGH LOW
<S> <C> <C> <C>
1994 first $ 50 7/8 $ 44 3/8
second 57 3/8 44 1/2
third 56 47 1/8
fourth 50 3/4 43 3/8
1995 first 51 3/4 44 5/8
second 57 3/4 49 5/8
third 68 7/8 53 3/4
fourth 74 3/4 64
</TABLE>
As of December 31, 1995, there were 103,137 record holders of Common Stock.
During 1994 and 1995, the registrant paid dividends on the Common Stock on a
quarterly basis, which aggregated $1.88 per share in 1994 and $2.08 per share in
1995. For additional information regarding the registrant's ability to pay
dividends, see "Government Supervision and Regulation -- Distributions." The
eighth paragraph of Note Six (page 59) and Note Nine (page 60) of the Notes To
Consolidated Financial Statements in the registrant's 1995 Annual Report to
Shareholders are hereby incorporated by reference.
ITEM 6. SELECTED FINANCIAL DATA
The information set forth in Table One (page 15) in the registrant's 1995
Annual Report to Shareholders is hereby incorporated by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
All of the information set forth under the captions "Management's
Discussion and Analysis -- 1995 Compared to 1994" (pages 14 through 41),
"Management's Discussion and Analysis -- 1994 Compared to 1993" (pages 41
through 45), "Report of Management" (page 46) and all tables, graphs and charts
presented under the foregoing captions in the 1995 Annual Report to Shareholders
of the registrant is hereby incorporated by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The following information set forth in the 1995 Annual Report to
Shareholders of the registrant is hereby incorporated by reference:
The Consolidated Financial Statements and Notes To Consolidated Financial
Statements of NationsBank Corporation and Subsidiaries, together with the report
thereon of Price Waterhouse LLP dated January 12, 1996 (pages 46 through 67);
the unaudited information presented in Table Twenty-One (page 42); and the
narrative comments under the caption "Fourth Quarter Review" (page 41).
9
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There were no changes in or disagreements with accountants on accounting
and financial disclosure.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information set forth under the caption "Election of Directors" on pages 3
through 10 of the definitive 1996 Proxy Statement of the registrant furnished to
shareholders in connection with its Annual Meeting to be held on April 24, 1996
(the "1996 Proxy Statement") with respect to the name of each nominee or
director, that person's age, positions and offices with the registrant, business
experience, directorships in other public companies, service on the registrant's
Board and certain family relationships, and information set forth under the
caption "Compliance with Section 16(a) of the Securities Exchange Act of 1934"
on page 13 of the 1996 Proxy Statement with respect to Section 16 matters, is
hereby incorporated by reference. The information required by Item 10 with
respect to executive officers is set forth in Part I, Item 4A hereof.
ITEM 11. EXECUTIVE COMPENSATION
Information with respect to current remuneration of executive officers,
certain proposed remuneration to them, their options and certain indebtedness
and other transactions set forth in the 1996 Proxy Statement (i) under the
caption "Board of Directors' Compensation" on pages 14 through 16 thereof, (ii)
under the caption "Executive Compensation" on pages 16 through 18 thereof, (iii)
under the caption "Retirement Plans" on pages 18 and 19 thereof, (iv) under the
caption "Deferred Compensation Plan" on pages 19 and 20 thereof, (v) under the
caption "Special Compensation Arrangements" on page 21 thereof, (vi) under the
caption "Compensation Committee Interlocks and Insider Participation" on page 28
thereof, and (vii) under the caption "Certain Transactions" on pages 28 and 29
thereof, is, to the extent such information is required by Item 402 of
Regulation S-K, hereby incorporated by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The security ownership information required by Item 403 of Regulation S-K
relating to persons who beneficially own more than 5% of the outstanding shares
of Common Stock or ESOP Preferred Stock, as well as security ownership
information relating to directors, nominees and named executive officers
individually and directors and executive officers as a group, is hereby
incorporated by reference to the ownership information set forth under the
caption "Security Ownership of Certain Beneficial Owners and Management" on
pages 10 through 13 of the 1996 Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information with respect to relationships and related transactions between
the registrant and any director, nominee for director, executive officer,
security holder owning 5% or more of the registrant's voting securities or any
member of the immediate family of any of the above, as set forth in the 1996
Proxy Statement under the caption "Compensation Committee Interlocks and Insider
Participation" on page 28 and under the caption "Certain Transactions" on pages
28 and 29 thereof, is, to the extent such information is required by Item 404 of
Regulation S-K, hereby incorporated by reference.
10
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
a. The following documents are filed as part of this report:
<TABLE>
<CAPTION>
PAGE IN
ANNUAL
REPORT*
<S> <C> <C>
(1) Financial Statements:
Report of Independent Accountants....................................................... 46
Consolidated Statement of Income for each of the three years ended
December 31, 1995..................................................................... 47
Consolidated Balance Sheet at December 31, 1995 and 1994................................ 48
Consolidated Statement of Cash Flows for each of the three years ended
December 31, 1995..................................................................... 49
Consolidated Statement of Changes in Shareholders' Equity for each of the three years
ended December 31, 1995............................................................... 50
Notes to Consolidated Financial Statements.............................................. 51-67
* Incorporated by reference from the indicated pages of the 1995 Annual Report to
Shareholders.
(2) All schedules are omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto.
</TABLE>
b. The following reports on Form 8-K have been filed by the registrant
during the quarter ended December 31, 1995:
Current Report on Form 8-K dated and filed October 20, 1995, Items
5 and 7. (Two reports filed on that date.)
Current Report on Form 8-K dated and filed November 9, 1995, Items
5 and 7.
Current Report on Form 8-K dated and filed December 15, 1995, Items
5 and 7.
c. The exhibits filed as part of this report and exhibits incorporated
herein by reference to other documents are listed in the Index to
Exhibits to this Annual Report on Form 10-K (pages E-1 through E-5,
including executive compensation plans and arrangements which are
identified separately by asterisk).
With the exception of the information herein expressly incorporated by
reference, the 1995 Annual Report to Shareholders and the 1996 Proxy Statement
are not to be deemed filed as part of this Annual Report on Form 10-K.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
NATIONSBANK CORPORATION
Date: March 29, 1996 By: */s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
*/s/ HUGH L. MCCOLL, JR. Chairman of the Board and March 29, 1996
Chief Executive Officer
(HUGH L. MCCOLL, JR.) (Principal Executive Officer)
*/s/ JAMES H. HANCE, JR. Vice Chairman and March 29, 1996
Chief Financial Officer
(JAMES H. HANCE, JR.) (Principal Financial Officer)
*/s/ MARC D. OKEN Executive Vice President March 29, 1996
(Principal Accounting Officer)
(MARC D. OKEN)
*/s/ RONALD W. ALLEN Director March 29, 1996
(RONALD W. ALLEN)
*/s/ WILLIAM M. BARNHARDT Director March 29, 1996
(WILLIAM M. BARNHARDT)
*/s/ THOMAS E. CAPPS Director March 29, 1996
(THOMAS E. CAPPS)
*/s/ CHARLES W. COKER Director March 29, 1996
(CHARLES W. COKER)
*/s/ THOMAS G. COUSINS Director March 29, 1996
(THOMAS G. COUSINS)
*/s/ ALAN T. DICKSON Director March 29, 1996
(ALAN T. DICKSON)
*/s/ W. FRANK DOWD, JR. Director March 29, 1996
(W. FRANK DOWD, JR.)
*/s/ PAUL FULTON Director March 29, 1996
(PAUL FULTON)
*/s/ L. L. GELLERSTEDT, JR. Director March 29, 1996
(L. L. GELLERSTEDT, JR.)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
*/s/ TIMOTHY L. GUZZLE Director March 29, 1996
(TIMOTHY L. GUZZLE)
*/s/ W. W. JOHNSON Director March 29, 1996
(W. W. JOHNSON)
*/s/ BUCK MICKEL Director March 29, 1996
(BUCK MICKEL)
Director March , 1996
(JOHN J. MURPHY)
*/s/ JOHN C. SLANE Director March 29, 1996
(JOHN C. SLANE)
*/s/ JOHN W. SNOW Director March 29, 1996
(JOHN W. SNOW)
*/s/ MEREDITH R. SPANGLER Director March 29, 1996
(MEREDITH R. SPANGLER)
*/s/ ROBERT H. SPILMAN Director March 29, 1996
(ROBERT H. SPILMAN)
*/s/ RONALD TOWNSEND Director March 29, 1996
(RONALD TOWNSEND)
*/s/ E. CRAIG WALL, JR. Director March 29, 1996
(E. CRAIG WALL, JR.)
*/s/ JACKIE M. WARD Director March 29, 1996
(JACKIE M. WARD)
*By: /s/ CHARLES M. BERGER
CHARLES M. BERGER, ATTORNEY-IN-FACT
</TABLE>
II-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S> <C> <C>
1. Not Applicable.
2. Not Applicable.
3. (a) Restated Articles of Incorporation of registrant, as in effect on the date hereof,
incorporated by reference to Exhibit 3(i) of registrant's Quarterly Report on Form
10-Q dated August 12, 1994.
(b) Amended and Restated Bylaws of registrant, as in effect on the date hereof.
4. (a) Specimen certificate of registrant's Common Stock, incorporated by reference to
Exhibit 4.1 of registrant's Registration No. 33-45542.
(b) Specimen certificate of registrant's ESOP Convertible Preferred Stock, Series C,
incorporated by reference to Exhibit 4(c) of registrant's Annual Report on Form 10-K
dated March 25, 1992.
(c) Indenture dated as of August 1, 1982 between registrant and Morgan Guaranty Trust
Company of New York, pursuant to which registrant issued its 7 3/4% Debentures, due
2002, incorporated by reference to Exhibit 4.2 of registrant's Registration No.
2-78530.
(d) Indenture dated as of October 1, 1986 between registrant and Security Pacific
National Trust Company (New York), pursuant to which registrant issued its 8 1/2%
Notes, due 1996, incorporated by reference to Exhibit 4.1 of registrant's
Registration No. 33-7221.
(e) Indenture dated as of September 1, 1989 between registrant and The Bank of New York,
pursuant to which registrant issued its 9 3/8% Subordinated Notes, due 2009; its
10.20% Subordinated Notes, due 2015; its 9 1/8% Subordinated Notes, due 2001; and its
8 1/8% Subordinated Notes, due 2002, incorporated by reference to Exhibit 4.1 of
registrant's Registration No. 33-30717.
(f) Indenture dated as of January 1, 1992 between registrant and BankAmerica Trust
Company of New York, pursuant to which registrant issued its 6 5/8% Senior Notes, due
1998, incorporated by reference to Exhibit 4.1 of registrant's Registration No.
33-54784.
(g) Indenture dated as of November 1, 1992 between registrant and The Bank of New York,
pursuant to which registrant issued its 6 7/8% Subordinated Notes, due 2005,
incorporated by reference to Exhibit 4.1 of registrant's Amendment to Application or
Report on Form 8 dated March 1, 1993.
(h) First Supplemental Indenture dated as of July 1, 1993 to the Indenture dated as of
January 1, 1992 between registrant and BankAmerica National Trust Company (formerly
BankAmerica Trust Company of New York), pursuant to which registrant issued its
Senior Medium-Term Notes, Series A, B and C; its 4 3/4% Senior Notes, due 1996; its
5 1/8% Senior Notes, due 1998; its 5 3/8% Senior Notes, due 2000; and its 7 1/2%
Senior Notes, due 1997, incorporated by reference to Exhibit 4.1 of registrant's
Report on Form 8-K dated July 6, 1993.
(i) First Supplemental Indenture dated as of July 1, 1993 to the Indenture dated as of
November 1, 1992 between registrant and The Bank of New York, pursuant to which
registrant issued its Subordinated Medium-Term Notes, Series A and B; its 6 1/2%
Subordinated Notes, due 2003; and its 7 3/4% Subordinated Notes, due 2004,
incorporated by reference to Exhibit 4.4 of registrant's Report on Form 8-K dated
July 6, 1993.
(j) Indenture dated as of January 1, 1995 between registrant and BankAmerica National
Trust Company, pursuant to which registrant issued its Floating Rate Senior Notes,
due 1998, and its Senior Medium-Term Notes, Series D and E, incorporated by reference
to Exhibit 4.1 of registrant's Registration No. 33-57533.
(k) Indenture dated as of January 1, 1995 between registrant and The Bank of New York,
pursuant to which registrant issued its 7 5/8% Subordinated Notes, due 2005; its
7 3/4% Subordinated Notes, due 2015; its 7 1/4% Subordinated Notes, due 2025; and its
Subordinated Medium-Term Notes, Series D and E, incorporated by reference to Exhibit
4.1 of registrant's Registration No. 33-57533.
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S> <C> <C>
(l) Fiscal and Paying Agency Agreement dated as of July 5, 1995, between registrant and
The Chase Manhattan Bank, N.A. (London Branch), pursuant to which registrant issued
its Floating Rate Senior Notes, due 2000.
(m) Agency Agreement dated as of November 8, 1995 between registrant and The Chase
Manhattan Bank, N.A. (London Branch), pursuant to which registrant issued its Senior
Euro Medium-Term Notes.
(n) Issuing and Paying Agency Agreement dated as of April 10, 1995 between NationsBank,
N.A. (as successor to NationsBank, N.A. (Carolinas)), NationsBank of Texas, N.A. and
NationsBank, N.A. (South) (as successor to NationsBank of Georgia, N.A.), as Issuers,
and Bankers Trust Company, as Issuing and Paying Agent.
(o) Articles of Association of NationsBank, N.A. (South).
(p) Statement of Designation relating to the NationsBank, N.A. (South) Series H Preferred
Stock.
(q) Statement of Designation relating to the NationsBank, N.A. (South) Series 1993A
Preferred Stock.
(r) The registrant has other long-term debt agreements, but these are not material in
amount. Copies of these agreements will be furnished to the Commission on request.
5. Not Applicable.
6. Not Applicable.
7. Not Applicable.
8. Not Applicable.
9. None.
10. (a) Limited Partnership Agreement of CSC Associates, L. P., between The Citizens and
Southern Corporation and Cousins Properties Incorporated dated as of September 29,
1989, including Transfer of Partnership Interest between The Citizens and Southern
Corporation and C&S Premises, Inc. and First Amendment thereto, both of which are
incorporated by reference to Exhibit 10(ss) of registrant's Annual Report on Form
10-K dated March 25, 1992; and Second Amendment thereto dated as of December 31,
1990, incorporated by reference to Exhibit 10(a) of registrant's Annual Report on
Form 10-K dated March 30, 1995.
(b) The NationsBank Retirement Savings Plan, as effective January 1, 1993, incorporated *
by reference to Exhibit 10(d) of registrant's Annual Report on Form 10-K dated March
30, 1994; Amendment thereto dated as of December 31, 1993, incorporated by reference
to Exhibit 10(c) of registrant's Annual Report on Form 10-K dated March 30, 1995; and
Amendments thereto dated as of December 31, 1994 and August 1, 1995.
(c) Investment Trust Agreement Under The NationsBank Retirement Savings Plan, as *
effective January 1, 1993, incorporated by reference to Exhibit 10(e) of registrant's
Annual Report on Form 10-K dated March 30, 1994.
(d) ESOP Trust Agreement Under The NationsBank Retirement Savings Plan, as effective *
January 1, 1993, incorporated by reference to Exhibit 10(f) of registrant's Annual
Report on Form 10-K dated March 30, 1994.
(e) Ancillary Trust Agreement for the Investment Trust of The NationsBank Retirement *
Savings Plan, as effective January 1, 1993, incorporated by reference to Exhibit
10(g) of registrant's Annual Report on Form 10-K dated March 30, 1994.
(f) Independent Agency Agreement for the Investment Trust of The NationsBank Retirement *
Savings Plan, as effective January 1, 1993, incorporated by reference to Exhibit
10(h) of registrant's Annual Report on Form 10-K dated March 30, 1994.
(g) NationsBank Corporation and Designated Subsidiaries Directors' Retirement Plan, *
incorporated by reference to Exhibit 10(f) of registrant's Annual Report on Form 10-K
dated March 27, 1991; and Amendment thereto dated as of September 28, 1994,
incorporated by reference to Exhibit 10(i) of registrant's Annual Report on Form 10-K
dated March 30, 1995.
</TABLE>
E-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S> <C> <C>
(h) NationsBank Corporation and Designated Subsidiaries Supplemental Executive Retirement *
Plan, incorporated by reference to Exhibit 10(j) of registrant's Annual Report on
Form 10-K dated March 30, 1995; Amendment thereto dated as of June 28, 1989,
incorporated by reference to Exhibit 10(g) of registrant's Annual Report on Form 10-K
dated March 28, 1990; Amendment thereto dated as of June 27, 1990, incorporated by
reference to Exhibit 10(g) of registrant's Annual Report on Form 10-K dated March 27,
1991; Amendment thereto dated as of July 21, 1991, incorporated by reference to
Exhibit 10(bb) of registrant's Annual Report on Form 10-K dated March 25, 1992;
Amendment thereto dated as of December 3, 1992 and Amendment thereto dated as of
December 15, 1992, both of which are incorporated by reference to Exhibit 10(l) of
registrant's Annual Report on Form 10-K dated March 24, 1993; and Amendment thereto
dated as of September 28, 1994, incorporated by reference to Exhibit 10(j) of
registrant's Annual Report on Form 10-K dated March 30, 1995.
(i) NationsBank Corporation and Designated Subsidiaries Deferred Compensation Plan for *
Key Employees, incorporated by reference to Exhibit 10(k) of registrant's Annual
Report on Form 10-K dated March 30, 1995; Amendment thereto dated as of June 28,
1989, incorporated by reference to Exhibit 10(h) of registrant's Annual Report on
Form 10-K dated March 28, 1990; Amendment thereto dated as of June 27, 1990,
incorporated by reference to Exhibit 10(h) of registrant's Annual Report on Form 10-K
dated March 27, 1991; Amendment thereto dated as of July 21, 1991, incorporated by
reference to Exhibit 10(bb) of registrant's Annual Report on Form 10-K dated March
25, 1992; and Amendment thereto dated as of December 3, 1992, incorporated by
reference to Exhibit 10(m) of registrant's Annual Report on Form 10-K dated March 24,
1993.
(j) 1986 Restricted Stock Award Plan of NationsBank Corporation, as amended, incorporated *
by reference to Exhibit 10(n) of registrant's Annual Report on Form 10-K dated March
24, 1993.
(k) The NationsBank Pension Plan, as effective January 1, 1993, incorporated by reference *
to Exhibit 10(n) of registrant's Annual Report on Form 10-K dated March 30, 1994;
Amendments thereto dated as of September 28, 1994, December 15, 1994 and December 28,
1994, incorporated by reference to Exhibit 10(m) of registrant's Annual Report on
Form 10-K dated March 30, 1995; and Amendments thereto dated as of June 28, 1995,
July 5, 1995, August 24, 1995 and September 28, 1995.
(l) NationsBank Corporation and Designated Subsidiaries Supplemental Retirement Plan, *
incorporated by reference to Exhibit 10(o) of registrant's Annual Report on Form 10-K
dated March 30, 1994; Amendment thereto dated as of June 28, 1989, incorporated by
reference to Exhibit 10(k) of registrant's Annual Report on Form 10-K dated March 28,
1990; Amendment thereto dated as of June 27, 1990, incorporated by reference to
Exhibit 10(k) of registrant's Annual Report on Form 10-K dated March 27, 1991;
Amendment thereto dated as of July 21, 1991, incorporated by reference to Exhibit
10(bb) of registrant's Annual Report on Form 10-K dated March 25, 1992; Amendment
thereto dated as of December 3, 1992 and Amendment thereto dated as of December 4,
1992, both of which are incorporated by reference to Exhibit 10(p) of registrant's
Annual Report on Form 10-K dated March 24, 1993; and Amendment thereto dated as of
July 5, 1995.
</TABLE>
E-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S> <C> <C>
(m) NationsBank Corporation and Designated Subsidiaries Supplemental Executive Retirement *
Plan for Senior Management Employees, incorporated by reference to Exhibit 10(o) of
registrant's Annual Report on Form 10-K dated March 30, 1995; Amendment thereto dated
as of June 28, 1989, incorporated by reference to Exhibit 10(l) of registrant's
Annual Report on Form 10-K dated March 28, 1990; Amendment thereto dated as of June
27, 1990, incorporated by reference to Exhibit 10(1) of registrant's Annual Report on
Form 10-K dated March 27, 1991; Amendment thereto dated as of July 21, 1991,
incorporated by reference to Exhibit 10(bb) of registrant's Annual Report on Form
10-K dated March 25, 1992; Amendment thereto dated as of December 3, 1992 and
Amendment thereto dated as of December 15, 1992, both of which are incorporated by
reference to Exhibit 10(q) of registrant's Annual Report on Form 10-K dated March 24,
1993; and Amendment thereto dated as of September 28, 1994, incorporated by reference
to Exhibit 10(o) of registrant's Annual Report on Form 10-K dated March 30, 1995.
(n) Split Dollar Agreement dated as of February 1, 1990 between registrant and Hugh L. *
McColl III, as Trustee for the benefit of Hugh L. McColl, Jr. and Jane S. McColl,
incorporated by reference to Exhibit 10(s) of registrant's Annual Report on Form 10-K
dated March 27, 1991.
(o) NationsBank Corporation Benefit Security Trust dated as of June 27, 1990, *
incorporated by reference to Exhibit 10(t) of registrant's Annual Report on Form 10-K
dated March 27, 1991; First Supplement thereto dated as of November 30, 1992,
incorporated by reference to Exhibit 10(v) of registrant's Annual Report on Form 10-K
dated March 24, 1993; and Trustee Removal/Appointment Agreement dated as of December
19, 1995.
(p) The NationsBank Retirement Savings Restoration Plan, as effective January 1, 1994, *
incorporated by reference to Exhibit 10(t) of registrant's Annual Report on Form 10-K
dated March 30, 1994.
(q) Employment Arrangement with Fredric J. Figge, II dated July 27, 1987, incorporated by *
reference to Exhibit 10(tt) of registrant's Annual Report on Form 10-K dated March
25, 1992.
(r) NationsBank Corporation Executive Incentive Compensation Plan, as effective January *
1, 1994 and Amendment thereto dated as of September 28, 1994, both of which are
incorporated by reference to Exhibit 10(v) of registrant's Annual Report on Form 10-K
dated March 30, 1995.
(s) NationsBank Corporation Key Employee Deferral Plan, as effective October 1, 1994, *
incorporated by reference to Exhibit 10(w) of registrant's Annual Report on Form 10-K
dated March 30, 1995.
(t) NationsBank Corporation Director Deferral Plan, as effective January 1, 1995, *
incorporated by reference to Exhibit 10(x) of registrant's Annual Report on Form 10-K
dated March 30, 1995.
(u) Special Trust Agreement under The NationsBank Pension Plan, as effective December 31, *
1994, incorporated by reference to Exhibit 10(y) of registrant's Annual Report on
Form 10-K dated March 30, 1995.
(v) NationsBank Corporation Key Employee Stock Plan, incorporated by reference to Exhibit *
10 of registrant's Quarterly Report on Form 10-Q dated May 15, 1995.
(w) Noncompetition Agreement with James W. Thompson dated January 31, 1996. *
(x) Supplemental Retirement Agreement with James W. Thompson dated January 31, 1996. *
11. Earnings per share computation.
12. (a) Ratio of Earnings to Fixed Charges.
(b) Ratio of Earnings to Fixed Charges and Preferred Dividends.
13. 1995 Annual Report to Shareholders. This exhibit contains only those portions of the Annual
Report that are incorporated by reference.
14. Not Applicable.
15. Not Applicable.
16. None.
17. Not Applicable.
</TABLE>
E-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S> <C> <C>
18. None.
19. Not Applicable.
20. Not Applicable.
21. List of Subsidiaries of Registrant.
22. None.
23. Consent of Price Waterhouse LLP.
24. (a) Power of Attorney.
(b) Corporate Resolution.
25. Not Applicable.
26. Not Applicable.
27. Financial Data Schedule.
28. None.
99. None.
</TABLE>
* Denotes executive compensation plan or arrangements.
E-5
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3
<SEQUENCE>2
<DESCRIPTION>EXHIBIT 3(B)
<TEXT>
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
NATIONSBANK CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I.
DEFINITIONS
Section 1. Definitions 1
Section 2. Cross-Reference to the Act 2
ARTICLE II.
OFFICES
Section 1. Principal Office 2
Section 2. Other Offices 2
Section 3. Registered Office 2
ARTICLE III.
SHAREHOLDERS
Section 1. Annual Meeting 2
Section 2. Substitute Annual Meeting 3
Section 3. Special Meetings 3
Section 4. Place of Meeting 3
Section 5. Notice of Meeting 3
Section 6. Fixing of Record Date 4
Section 7. Shareholders List 4
Section 8. Quorum 4
Section 9. Proxies 5
Section 10. Voting of Shares 5
Section 11. Voting for Directors 5
Section 12. Conduct of Meetings 6
Section 13. Inapplicability of the North Carolina 6
Shareholder Protection Act and the
North Carolina Control Share
Acquisition Act.
<PAGE>
ARTICLE IV.
BOARD OF DIRECTORS
Section 1. General Powers 6
Section 2. Number and Qualifications 6
Section 3. Terms of Directors 6
Section 4. Removal 7
Section 5. Vacancies 7
Section 6 Compensation 7
Section 7. Executive Committee 7
Section 8. Compensation Committee 8
Section 9. Management Compensation Committee 9
Section 10. Audit Committee 10
Section 11. Other Committees 10
ARTICLE V.
MEETINGS OF DIRECTORS
Section 1. Regular Meetings 11
Section 2. Special Meetings 11
Section 3. Notice 11
Section 4. Waiver of Notice 12
Section 5. Quorum 12
Section 6. Manner of Acting 12
Section 7. Presumption of Assent 12
Section 8. Conduct of Meetings 12
Section 9. Action Without a Meeting 13
Section 10. Participation Other Than in Person 13
ARTICLE VI.
OFFICERS
Section 1. Officers of the Corporation 13
Section 2. Appointment and Term 13
Section 3. Compensation 14
Section 4. Resignation and Removal of Officers 14
Section 5. Contract Rights of Officers 14
Section 6. Bonds 14
ii
<PAGE>
Section 7. Chief Executive Officer 14
Section 8. Chairman of the Board 15
Section 9. President 15
Section 10. Vice Chairman 15
Section 11. Executive Vice Presidents 15
Section 12. Senior Vice President 15
Section 13. Vice Presidents 15
Section 14. Secretary 16
Section 15. Treasurer 16
Section 16. Assistant Vice Presidents, Secretaries
and Assistant Treasurers 16
ARTICLE VII.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts 16
Section 2. Loans 17
Section 3. Checks and Drafts 17
Section 4. Deposits 17
ARTICLE VIII.
SHARES AND THEIR TRANSFER
Section 1. Shares 17
Section 2. Stock Transfer Books and Transfer of
Shares 18
Section 3. Lost Certificates 19
Section 4. Holder of Record 19
Section 5. Transfer Agent and Registrar; Regulations 19
ARTICLE IX.
INDEMNIFICATION
Section 1. Definitions 19
Section 2. Indemnification 20
Section 3. Determination 21
Section 4. Advance for Expenses 21
Section 5. Reliance and Consideration 22
Section 6 Insurance 22
iii
<PAGE>
ARTICLE X.
GENERAL PROVISIONS
Section 1. Voting of Shares 22
Section 2. Distributions 22
Section 3. Seal 23
Section 4. Amendments 23
</TABLE>
iv
<PAGE>
ARTICLE I.
DEFINITIONS
Section 1. Definitions. In these Bylaws, unless otherwise specifically
provided:
(a) "Act" means the North Carolina Business Corporation
Act, as contained in Chapter 55 of the North Carolina
General Statutes, as the same now exists or may
hereafter be amended.
(b) "Articles of Incorporation" means the Articles of
Incorporation of the Corporation, as amended and
restated from time to time, including any amendments or
statements of classification adopted in connection with
the Corporation's outstanding shares of preferred
stock.
(c) "Common Stock" means the common stock of the
Corporation.
(d) "Corporation" means NationsBank Corporation, a North
Carolina corporation, and any successor thereto.
(e) "Principal office" means the office (in or out of the
State of North Carolina) so designated in the
Corporation's annual report filed pursuant to the Act
where the principal executive offices of the
Corporation are located.
(f) "Public corporation" means any corporation that has a
class of shares registered under Section 12 of the
Securities Exchange Act of 1934, as amended (15 U.S.C.
ss.781).
(g) "Shares" means the Common Stock and other units into
which the proprietary interests in the Corporation are
divided.
(h) "Shareholder" means the person in whose name shares are
registered in the records of the Corporation or the
beneficial owner of shares to the extent of the rights
granted by a nominee certificate on file with the
Corporation.
<PAGE>
(i) "Voting group" means all shares of one or more classes
or series that under the Articles of Incorporation or
the Act are entitled to vote and be counted together
collectively on a matter at a meeting of shareholders.
All shares entitled by the Articles of Incorporation or
the Act to vote generally on a matter are for that
purpose a single voting group.
Section 2. Cross-Reference to the Act. If any term used in these Bylaws
and not otherwise defined herein is defined for purposes of the Act, such
definition shall apply for purposes of these Bylaws, unless the context shall
otherwise clearly require.
ARTICLE II.
OFFICES
Section 1. Principal Office. The principal office of the Corporation
shall be located in the City of Charlotte, County of Mecklenburg, State of North
Carolina.
Section 2. Other Offices. The Corporation may have offices at such other
places, either within or without the State of North Carolina, as the Board of
Directors may from time to time determine or as the affairs of the Corporation
may require from time to time.
Section 3. Registered Office. The registered office of the Corporation
required by the Act to be maintained in the State of North Carolina may be, but
need not be, identical with the principal office of the Corporation, and the
address of the registered office may be changed from time to time as provided in
the Act.
ARTICLE III.
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall
be held during the month of April of each year at a date and an hour fixed by
the Board of Directors for the purpose of electing directors and for the
transaction of such other business as may come before the meeting.
2
<PAGE>
Section 2. Substitute Annual Meeting. If the annual meeting shall not be
held within the period designated by these Bylaws, a substitute annual meeting
may be called in accordance with the provisions of Section 3 of this Article
III. A meeting so called shall be designated and treated for all purposes as the
annual meeting.
Section 3. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by the Act, may be called
by the Chairman of the Board, the Chief Executive Officer, the President or by
the Secretary acting under instructions of the Chairman of the Board or the
Chief Executive Officer, or by the Board of Directors.
Section 4. Place of Meeting. The Board of Directors or the Chairman of
the Board, the Chief Executive Officer or President of the Corporation, or the
Secretary acting under instructions of the Chairman of the Board, the Chief
Executive Officer or President may designate any place, either within or without
the State of North Carolina, as the place of meeting for any annual meeting of
shareholders or for any special meeting of shareholders called by the Board of
Directors or the Chairman of the Board, the Chief Executive Officer or President
or Secretary. If no designation is made, or if a special meeting of shareholders
is otherwise called, the place of meeting shall be the principal office of the
Corporation in the State of North Carolina.
Section 5. Notice of Meeting. Written or printed notice stating the
date, time and place of the meeting shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, either personally or by mail, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be effective when deposited in the United States mail
with postage thereon prepaid and correctly addressed to the shareholder at such
shareholder's address as shown in the Corporation's current record of
shareholders.
In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of directors, on which the vote of
shareholders is expressly required by the provisions of the Act. In the case of
a special meeting, the notice of meeting shall state the purpose or purposes for
which the meeting is called.
If a meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting, or if a new record date is fixed for the
adjourned meeting, or if the new date, time or place for an adjourned meeting is
not announced at the meeting before adjournment, notice of the adjourned meeting
shall be given as in the case of an original meeting. Otherwise, it is
3
<PAGE>
not necessary to give any notice of the adjourned meeting other than by
announcement at the meeting at which the adjournment is taken.
Section 6. Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of any
dividend or other distribution, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date for any such determination of shareholders, such date in any case
to be not more than 60 days and, in case of a meeting of shareholders, not less
than 10 days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a meeting
of shareholders, or for determination of the shareholders entitled to receive
payment of a dividend or other distribution, the close of business on the day
before the first notice is delivered to shareholders or the date on which the
resolution of the Board of Directors declaring or authorizing such dividend or
distribution is adopted, as the case may be, shall be the record date for such
determination. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
Section 7. Shareholders List. After the record date for a meeting of
shareholders is fixed or determined, the officer or agent having charge of the
stock transfer books for shares of the Corporation shall prepare an alphabetical
list of the names of all shareholders of the Corporation who are entitled to
notice of such shareholders meeting. The list will be arranged by voting group
(and within each voting group by class or series of shares) and show the address
of and number of shares held by each shareholder. Such shareholders list will be
available for inspection by any shareholder, beginning two business days after
notice of the meeting is given for which the list was prepared and continuing
through the meeting, at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder, or a shareholder's agent or attorney, is entitled on written demand
to inspect and, subject to compliance with the applicable provisions of the Act,
to copy the list, during regular business hours and at the shareholder's
expense, during the period it is available for inspection. Such list shall also
be available at the meeting of shareholders, and any shareholder, or such
shareholder's agent or attorney, is entitled to inspect the list at any time
during the meeting or any adjournment thereof.
Section 8. Quorum. A majority of the votes entitled to be cast on a
particular matter by a voting group constitutes a quorum of that voting group
4
<PAGE>
for action on that matter unless the Act provides otherwise. Shares entitled to
vote as a separate voting group may take action on a matter at a meeting of
shareholders only if a quorum of those shares exists with respect to that
matter, except that, in the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
Section 9. Proxies. A shareholder may vote his or her shares in person
or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by such
shareholder's attorney-in-fact. A telegram, telex, facsimile or other form of
wire or wireless communication appearing to have been transmitted by a
shareholder, or a photocopy or equivalent reproduction of a writing appointing
one or more proxies, shall be deemed a valid appointment form within the meaning
of these Bylaws.
An appointment of a proxy is effective when received by the Secretary or
other officer or agent authorized to tabulate votes. An appointment is valid for
11 months unless a different period is expressly provided in the appointment
form. An appointment of a proxy is revocable by the shareholder unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest, which may include any such interest specified in
the Act.
Section 10. Voting of Shares. Each outstanding share of Common Stock is
entitled to one vote on each matter voted on at a shareholders meeting. Other
shares are entitled to vote only as provided in the Articles of Incorporation or
the Act. If a quorum exists, action on a matter (other than election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
Articles of Incorporation or the Act requires a greater number of affirmative
votes. Classes or series of shares shall not be entitled to vote separately by
voting group unless expressly required by the Articles of Incorporation or as
otherwise provided in the Act.
Section 11. Voting for Directors. The directors of the Corporation shall
be elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present unless otherwise provided
in the Articles of Incorporation. The shareholders do not have a right to
cumulate their votes for directors.
5
<PAGE>
Section 12. Conduct of Meetings. The Chairman of the Board shall preside
at each meeting of shareholders or, in the Chairman's absence, the Chief
Executive Officer shall preside. At the request of the Chairman of the Board or
the Chief Executive Officer, in both their absences, such other officer as the
Board of Directors shall designate shall preside at any such meeting. In the
absence of a presiding officer determined in accordance with the preceding
sentence, any person may be designated to preside at a shareholders meeting by a
plurality vote of the shares represented and entitled to vote at the meeting.
The Secretary or, in the absence or at the request of the Secretary, any person
designated by the person presiding at a shareholders meeting shall act as
secretary of such meeting.
Section 13. Inapplicability of the North Carolina Shareholder Protection
Act and the North Carolina Control Share Acquisition Act. The provisions of
Article 9 of Chapter 55 of the General Statutes of North Carolina, or such other
successor statute, entitled "The North Carolina Shareholder Protection Act,"
shall not apply to the Corporation. The provisions of Article 9A of Chapter 55
of the General Statutes of North Carolina, or such other successor statute,
entitled "The North Carolina Control Share Acquisition Act," shall not apply to
the Corporation.
ARTICLE IV.
BOARD OF DIRECTORS
Section 1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, its Board of Directors, except as otherwise
provided in the Articles of Incorporation or permitted under the Act.
Section 2. Number and Qualifications. The number of directors of the
Corporation shall be not less than 5 nor more than 30, which number may be fixed
or changed from time to time, within the minimum and maximum, by the Board of
Directors. Directors need not be residents of the State of North Carolina or
shareholders of the Corporation. A director of the Corporation shall at all
times meet all statutory and regulatory qualifications for a director of a
publicly held bank holding company.
Section 3. Terms of Directors. The terms of all directors shall expire
at the next annual shareholders meeting following their election. A decrease in
the number of directors does not shorten an incumbent director's term. The term
of a director elected to fill a vacancy shall expire at the next shareholders
meeting at which directors are elected. Despite the expiration of a director's
term, however, such director shall continue to serve until the director's
successor is elected and qualified.
6
<PAGE>
Section 4. Removal. Any director may be removed at any time with or
without cause by a vote of the shareholders if the number of votes cast to
remove such director exceeds the number of votes cast not to remove him or her
unless otherwise provided in the Articles of Incorporation. A director may not
be removed by the shareholders at a meeting unless the notice of the meeting
states that the purpose, or one of the purposes, of the meeting is removal of
the director. If any directors are so removed, new directors may be elected at
the same meeting.
Any director may be removed by the Board of Directors if a director no
longer meets the qualification requirements of Section 2 of this Article IV or
as otherwise prescribed by law.
Section 5. Vacancies. Except in those instances where the Articles of
Incorporation provide otherwise, the Board of Directors may fill a vacancy on
the Board of Directors. A vacancy that will occur at a specific later date (by
reason of a resignation effective at a later date or otherwise) may be filled
before the vacancy occurs, but the new director may not take office until the
vacancy occurs.
Section 6. Compensation. The Board of Directors may provide for the
compensation of directors for their services as such and may provide for the
payment or reimbursement of any or all expenses reasonably incurred by them in
attending meetings of the Board or of any committee of the Board or in the
performance of their other duties as directors. Nothing herein contained,
however, shall prevent any director from serving the Corporation in any other
capacity or receiving compensation therefor.
Section 7. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors fixed in the manner provided in
Section 2 of this Article IV, may designate five or more directors who shall
constitute the Executive Committee of the Corporation. The Executive Committee,
between meetings of the Board of Directors and subject to such limitations as
may be required by law or imposed by resolution of the Board of Directors, shall
have and may exercise all of the authority of the Board of Directors in the
management of the Corporation. The designation of the Executive Committee and
the delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or such director by law.
Meetings of the Executive Committee may be held at any time on call of
its Chairman or any two members of the Committee. A majority of the members
shall constitute a quorum at all meetings. The Executive Committee shall keep
minutes of its proceedings and shall report its actions to the next succeeding
meeting of the Board of Directors.
7
<PAGE>
Section 8. Compensation Committee. The Board of Directors, by resolution
adopted by a majority of the number of Directors fixed in the manner provided in
Section 2 of this Article IV, may designate three or more directors who shall
not be otherwise employed by the Corporation or its subsidiaries who shall
constitute the Compensation Committee of the Corporation.
The Compensation Committee shall provide overall guidance with respect
to the establishment, maintenance and administration of the Corporation's
compensation programs and employee benefit plans.
The Compensation Committee shall review and approve the annual
compensation, including salary, incentive compensation and other benefits,
direct and indirect, for officers who serve as executive officers of the
Corporation. The Compensation Committee shall also approve and adopt proposals
related to any employee benefit plan of the Corporation or its subsidiaries in
which any officer participates who also serves as an executive officer of the
Corporation, including proposals for the adoption, amendment, modification or
termination of such plans. As to the salary, incentive compensation and other
benefits, direct and indirect, for the Chief Executive Officer of the
Corporation and of all other officers of the Corporation who are also Directors
of the Corporation, the Compensation Committee shall submit recommendations to
the Executive Committee for review and concurrence prior to their submission to
the Board of Directors for approval.
The Compensation Committee shall have such other purposes and such other
powers as the Board of Directors may from time to time determine.
Meetings of the Compensation Committee shall be held quarterly or at any
time on call of the Chairman of the Compensation Committee. A majority of the
members shall constitute a quorum at all meetings. The Compensation Committee
shall keep minutes of its proceedings and shall report its actions in writing to
the next succeeding meeting of the Board of Directors.
As used herein, the term "executive officer" means those officers of the
Corporation who are designated as such from time to time.
The Compensation Committee may in its discretion delegate to the
Management Compensation Committee any of its powers and authority set forth in
this Section 8 with respect to any executive officer of the Corporation who is
not a "named executive officer" of the Corporation within the meaning of Item
402 of Regulation S-K promulgated under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
8
<PAGE>
Section 9. Management Compensation Committee. The Board of Directors, by
resolution adopted by a majority of the Directors fixed in the manner provided
in Section 2 of this Article IV, may designate the Chief Executive Officer and
such other officers as it deems appropriate to constitute the members of a
Management Compensation Committee. The Chief Executive Officer shall be the
Chairman of the Management Compensation Committee.
The Management Compensation Committee shall have the authority to
establish the titles and the compensation, including salaries, incentive
compensation and other benefits, direct and indirect, for all employees of the
Corporation and its subsidiaries who are not officers and for all officers of
the Corporation and its subsidiaries who do not serve as executive officers of
the Corporation. In connection with its duties, the Management Compensation
Committee shall approve all annual compensation budgets, all employee benefits
plans, the salary guidelines for positions and all incentive compensation plans
for such employees and officers of the Corporation and its subsidiaries.
The Management Compensation Committee may delegate to one or more
officers of the Corporation the authority to establish titles and the
compensation, including salaries, incentive compensation awards pursuant to
incentive compensation plans previously approved by the Management Compensation
Committee, and other benefits for all personnel within such officer's area of
functional responsibility at the level of Senior Vice President or below. Any
action taken by an officer to whom such authority has been delegated shall be
subject to ratification by the Management Compensation Committee.
The Management Compensation Committee shall make recommendations from
time to time to the Compensation Committee regarding the establishment,
amendment, modification and termination of any employee benefit plans sponsored
by the Corporation and its subsidiaries in which any officer of the Corporation
or its subsidiaries participates who also serves as an executive officer of the
Corporation.
The Management Compensation Committee shall have such other purposes and
such other powers as the Board of Directors may from time to time determine.
Meetings of the Management Compensation Committee shall be held
quarterly or any time on call of the Chairman of the Management Compensation
Committee. A majority of the members shall constitute a quorum at all meetings.
The Management Compensation Committee shall
9
<PAGE>
keep minutes of its proceedings and shall report its actions to the Compensation
Committee.
As used herein, the term "executive officer" means those officers of the
Corporation who are designated as such from time to time.
In accordance with Section 8, the Management Compensation Committee may
be delegated by the Compensation Committee certain of the powers and authority
of the Compensation Committee set forth in Section 8 with respect to any
executive officer of the Corporation who is not a "named executive officer" of
the Corporation within the meaning of Item 402 of Regulation S-K promulgated
under the Securities Act of 1933 and the Securities Exchange Act of 1934.
Section 10. Audit Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors fixed in the manner provided in
Section 2 of this Article IV, shall designate three or more directors who shall
not be otherwise employed by Corporation or its subsidiaries to constitute the
Audit Committee of the Board.
The Audit Committee shall have such powers and duties as described from
time to time by resolutions of the Board of Directors. The Audit Committee shall
keep minutes of its proceedings and shall report its actions to the next
succeeding meeting of the Board of Directors.
Section 11. Other Committees. The Board of Directors may create one or
more other committees and appoint members of the Board of Directors to serve on
them. Each committee must have two or more members, who serve at the pleasure of
the Board of Directors. The creation of a committee and appointment of members
of the Board of Directors to it must be approved by the greater of a majority of
all of the directors in office when the action is taken or the number of
directors required by the Articles of Incorporation for the taking of action by
the Board of Directors. The provisions of the Act and these Bylaws that govern
meetings, action without meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors, shall apply to committees and
their members as well. To the extent specified by the Board of Directors, each
committee may exercise the authority of the Board of Directors, except as to the
matters which the Act specifically excepts from the authority of such
committees. Nothing contained in this Section shall preclude the Board of
Directors from establishing and appointing any committee, whether of directors
or otherwise, not having or exercising the authority of the Board of Directors.
10
<PAGE>
ARTICLE V
MEETINGS OF DIRECTORS
Section 1. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw provision immediately after,
and at the same place as, the annual meeting of the shareholders. In addition,
the Board of Directors may provide, by resolution, the date, time and place,
either within or without the State of North Carolina, for the holding of
additional regular meetings.
Section 2. Special Meetings. Special meetings of the Board of Directors
may be held at any date, time and place upon the call of the Chairman of the
Board, the Chief Executive Officer or the President or of the Secretary acting
under instructions from the Chairman of the Board or the Chief Executive Officer
or the President, or upon the call of any three directors. Special meetings may
be held at any date, time and place and without special notice by unanimous
consent of the directors.
Section 3. Notice. The person or persons calling a special meeting of
the Board of Directors shall, at least two days before the meeting, give notice
thereof by any usual means of communication. Such notice may be communicated,
without limitation, in person; by telephone, telegraph, teletype or other form
of wire or wireless communication, or by facsimile transmission; or by mail or
private carrier. Written notice of a directors meeting is effective at the
earliest of the following:
(a) When received;
(b) Upon its deposit in the United States mail, as evidenced by the
postmark, if mailed with postage thereon prepaid and correctly
addressed;
(c) If by facsimile, by acknowledgment of the facsimile; or
(d) On the date shown on the confirmation of delivery issued by a
private carrier, if sent by private carrier to the address of
the director last known to the Corporation.
Oral notice is effective when actually communicated to the director. Notice of
an adjourned meeting of directors need not be given if the time and place are
fixed at the meeting adjourning and if the period of adjournment does not exceed
ten days in any one adjournment. The notice of any meeting of directors need not
describe the purpose of the meeting unless otherwise required by the Act.
11
<PAGE>
Section 4. Waiver of Notice. A director may waive any notice required by
the Act, the Articles of Incorporation or these Bylaws before or after the date
and time stated in the notice. The waiver must be in writing, signed by the
director entitled to the notice, and filed with the minutes or corporate
records, except that, notwithstanding the foregoing requirement of written
notice, a director's attendance at or participation in a meeting waives any
required notice to the director of the meeting unless the director at the
beginning of the meeting (or promptly upon the director's arrival) expressly
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 5. Quorum. A majority of the number of directors in office
immediately before the meeting begins, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of directors present may
adjourn the meeting from time to time without further notice.
Section 6. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, except as otherwise provided by the Act. The vote of a majority of
all of the directors in office when the action is taken shall be required for
the creation of a committee and the appointment of members of the Board of
Directors to it.
Section 7. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken shall be deemed to have assented to the
action taken unless the director expressly objects at the beginning of the
meeting (or promptly upon the director's arrival) to holding it or transacting
business at the meeting, unless the director's contrary vote is recorded or such
director's dissent or abstention from the action shall be entered in the minutes
of the meeting or unless the director shall file written notice of dissent or
abstention to such action with the person acting as secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Corporation immediately after adjournment of the
meeting. Such right of dissent or abstention shall not apply to a director who
voted in favor of the action taken.
Section 8. Conduct of Meetings. The Chairman or the Chief Executive
Officer shall preside at all meetings of the Board of Directors; provided,
however, that in the absence or at the request of the Chairman of the Board, or
if there shall not be a person holding such offices, the person selected to
preside at a meeting of directors by a vote of a majority of the directors
present shall preside at such meeting. The Secretary, or in the absence or at
the
12
<PAGE>
request of the Secretary, any person designated by the person presiding at a
meeting of the Board of Directors, shall act as secretary of such meeting.
Section 9. Action Without a Meeting. Any action required or permitted to
be taken at a Board of Directors meeting may be taken without a meeting if the
action is taken by all members of the Board. The action must be evidenced by one
or more written consents signed by each director before or after such action,
describing the action taken, which consent or consents shall be included in the
minutes or filed with the corporate records. Action taken as provided in this
Section is effective when the last director signs the consent, unless the
consent specifies a different effective date. A consent signed pursuant to this
Section has the effect of a meeting vote and may be described as such in any
document.
Section 10. Participation Other Than in Person. The Board of Directors
may permit any or all directors to participate in a regular or special meeting
by, or conduct the meeting through the use of, any means of communication by
which all directors participating may simultaneously hear each other during the
meeting. A director participating in a meeting by this means is deemed to be
present in person at such meeting.
ARTICLE VI.
OFFICERS
Section 1. Officers of the Corporation. The officers of the Corporation
may include a Chairman of the Board, a Chief Executive Officer, one or more Vice
Chairmen, a President, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, one or more Vice Presidents, a Secretary, a Treasurer, and such
other officers, assistant officers and agents, as may be appointed from time to
time by or under the authority of the Board of Directors including that
authority vested under Sections 8 or 9 of Article IV hereof. The same individual
may simultaneously hold more than one office in the Corporation, but no
individual may act in more than one capacity where action of two or more
officers is required. The title of any officer may include any additional
designation descriptive of such officer's duties as the Board of Directors may
prescribe.
Section 2. Appointment and Term. The officers of the Corporation shall
be appointed by the Board of Directors or by a committee or an officer
authorized by the Board of Directors to appoint one or more officers or
assistant officers; provided, however, that no officer may be authorized to
appoint the Chairman of the Board, the Chief Executive Officer or the President.
Each officer shall hold office until his or her death, resignation,
13
<PAGE>
retirement, removal or disqualification or until such officer's successor is
elected and qualified.
Section 3. Compensation. The compensation of all officers of the
Corporation shall be fixed by or under the authority of the Board of Directors
or in accordance with Sections 8 and 9 of Article IV hereof. No officer shall be
prevented from receiving such salary by reason of the fact that such officer is
also a director.
Section 4. Resignation and Removal of Officers. An officer may resign at
any time by communicating such officer's resignation to the Corporation. A
resignation is effective when it is communicated unless it specifies in writing
a later effective date. If a resignation is made effective at a later date and
the Corporation accepts the future effective date, the Board of Directors may
fill the pending vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the effective date. The
Board of Directors, by the affirmative vote of a majority of its members, may
remove the Chairman of the Board, the Chief Executive Officer or the President
whenever in its judgment the best interests of the Corporation would be served
thereby. In addition, the Board of Directors or a committee or an officer
authorized by the Board of Directors may remove any other officer at any time
with or without cause. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the directors or in
accordance with Sections 8 or 9 of Article IV hereof for the unexpired portion
of the term.
Section 5. Contract Rights of Officers. The appointment of an officer
does not itself create contract rights. An officer's removal does not itself
affect the officer's contract rights, if any, with the Corporation, and an
officer's resignation does not itself affect the Corporation's contract rights,
if any, with the officer.
Section 6. Bonds. The Board of Directors may by resolution require any
officer, agent or employee of the Corporation to give bond to the Corporation,
with sufficient sureties, conditioned on the faithful performance of the duties
of the applicable office or position, and to comply with such other conditions
as may from time to time be required by the Board of Directors. Such bonds may
be scheduled or blanket form and the premiums shall be paid by the Corporation.
Section 7. Chief Executive Officer. The Board of Directors may appoint a
Chief Executive Officer. The Chief Executive Officer shall, subject to the
direction and control of the Board of Directors, supervise and control the
business and affairs of the Corporation. In general the Chief Executive Officer
shall perform all duties incident to the position of chief executive officer or
as may be prescribed by the Board of Directors or these Bylaws from time to
time.
14
<PAGE>
Section 8. Chairman of the Board. The Board of Directors may appoint
from among its members an officer designated as the Chairman of the Board, but
the appointment of a Chairman of the Board shall not be required. If a Chairman
of the Board shall be appointed, then the Chairman of the Board shall have such
other duties and authority as may be prescribed by the Board of Directors from
time to time. In general the Chairman of the Board shall perform all duties
incident to the position of chairman of the board or as may be prescribed by the
Board of Directors or these Bylaws from time to time.
Section 9. President. The Board of Directors may appoint a President.
The President, in the absence of the Chairman of the Board or in the event of
the Chairman's death or inability or refusal to act, shall perform the duties
and exercise the powers of that office and, in addition, the President shall
perform such other duties and shall have such other authority as the Board of
Directors shall prescribe. In general the President shall perform all duties
incident to the position of president and or as may be prescribed by the Board
of Directors or these Bylaws from time to time. The Board of Directors shall, if
it deems such action necessary or desirable, designate the officer of the
Corporation who is to perform the duties of the President in the event of such
officer's absence or inability to act.
Section 10. Vice Chairman. The Board of Directors may appoint one or
more officers designated as the Vice Chairman, but the appointment of one or
more Vice Chairmen shall not be required. If one or more Vice Chairmen shall be
appointed, then one or more Vice Chairmen shall have such duties and authority
as may be prescribed by the Board of Directors from time to time.
Section 11. Executive Vice Presidents. Each Executive Vice President
shall perform duties and shall have such powers as are normally incident to such
office or as shall otherwise be prescribed by the Chief Executive Officer, the
Board of Directors or a committee established under these Bylaws.
Section 12. Senior Vice President. Each Senior Vice President shall
perform duties and shall have such powers as are normally incident to such
office or as shall otherwise be prescribed by the Chief Executive Officer, the
Board of Directors or a committee under these Bylaws.
Section 13. Vice Presidents. Each Vice President shall perform duties
and shall have such powers as are normally incident to such office or as shall
otherwise be prescribed by the Chief Executive Officer, the Board of Directors
or a committee under these Bylaws.
Section 14. Secretary. The Secretary shall: (a) keep the minutes of
meetings of the shareholders and of the Board of Directors in one or more
14
<PAGE>
books provided for that purpose; (b) have the responsibility and authority to
maintain and authenticate the records of the Corporation; (c) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (d) be custodian of the corporate records and of the seal of
the Corporation and see that the seal of the Corporation is affixed to all
documents the execution of which on behalf of the Corporation under its seal is
duly authorized; (e) keep a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder; (f)
sign with the Chairman of the Board, Chief Executive Officer or President,
certificates for shares of the Corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (g) have general charge
of the stock transfer books of the Corporation; and (h) in general perform all
duties incident to the office of the Secretary and such other duties as from
time to time may be assigned to the Secretary by the Chief Executive Officer of
the Corporation, the Board of Directors or a committee under these Bylaws.
Section 15. Treasurer. The Treasurer shall: (a) have charge and custody
of all funds and securities of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any source whatsoever, and
deposit all such moneys in the name of the Corporation in such banks, trust
companies or other depositaries as shall be selected in accordance with the
provisions of Section 4 of Article VII; and (b) in general perform all of the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to the Treasurer by the Chief Executive Officer of the
Corporation, the Board of Directors or a committee under these Bylaws.
Section 16. Assistant Vice Presidents, Secretaries and Assistant
Treasurers. The Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, if any, shall, in the event of the death or inability or refusal to
act of the Secretary or the Treasurer, respectively, have all the powers and
perform all of the duties of those offices, and they shall, in general, perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chief Executive Officer of the Corporation or the Board
of Directors. The Assistant Secretaries when authorized by the Board of
Directors, may sign with the Chairman of the Board.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instruments in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances. The Chief
16
<PAGE>
Executive Officer, the Chairman of the Board, the President and any Vice
Chairman shall have the authority to execute deeds, mortgages, bonds, contracts
or other instruments in the name and on behalf of the Corporation except in
those cases where execution has been expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. Any resolution of
the Board of Directors authorizing the execution of any deed, mortgage, bond,
contract or other document by the proper officers of the Corporation or by the
officers of the Corporation generally and not specifying particular officers
shall be deemed to authorize such execution by the Chairman of the Board, the
Chief Executive Officer, the President, any Vice Chairman or any Executive or
Senior Vice President, or any other officer if such execution is within the
scope of the duties of such other officer.
Section 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for the
payment of money and notes or other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or officers, agent or agents
of the Corporation and in such manner as shall from time to time be determined
by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as may be selected by or under the
authority of the Board of Directors.
ARTICLE VIII
SHARES AND THEIR TRANSFER
Section 1. Shares. Shares of the Corporation may but need not be
represented by certificates.
When shares are represented by certificates, the Corporation shall issue
such certificates in such form as shall be required by the Act and as determined
by the Board of Directors, to every shareholder for the fully paid shares owned
by such shareholder. Each certificate shall be signed by, or shall bear the
facsimile signature of, the Chairman of the Board, the Chief Executive Officer
or the President and the Secretary or an Assistant Secretary of the Corporation
and may bear the corporate seal of the Corporation or its facsimile. All
certificates for the Corporation's shares shall be consecutively numbered or
otherwise identified. The name and address of the person to
17
<PAGE>
whom the shares represented by a certificate are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
Corporation. Such information may be stored or retained on discs, tapes, cards
or any other approved storage device relating to data processing equipment;
provided that such device is capable of reproducing all information contained
therein in legible and understandable form, for inspection by shareholders or
for any other corporate purpose.
When shares are not represented by certificates, then within a
reasonable time after the issuance or transfer of such shares, the Corporation
shall send the shareholder to whom such shares have been issued or transferred a
written statement of the information required by the Act to be on certificates.
Section 2. Stock Transfer Books and Transfer of Shares. The Corporation,
or its agent, shall keep a book or set of books to be known as the stock
transfer books of the Corporation, containing the name of each shareholder of
record, together with such shareholder's address and the number and class or
series of shares held by such shareholder. Transfer of shares of the Corporation
represented by certificates shall be made on the stock transfer books of the
Corporation only upon surrender of the certificates for the shares sought to be
transferred by the holder of record thereof or by such holder's duly authorized
agent, transferee or legal representative, who shall furnish proper evidence of
authority to transfer with the Secretary. All certificates surrendered for
transfer shall be cancelled before new certificates for the transferred shares
shall be issued.
If shares of the Corporation
(1) are in the custody of a clearing corporation or of a
custodian bank or a nominee of either subject to the
instructions of the clearing corporation; and
(2) are in bearer form or endorsed in blank by an
appropriate person or registered in the name of the
clearing corporation or custodian bank or a nominee of
either; and
(3) are shown on the account of a transferor or pledgor on
the books of the clearing corporation;
then in addition to other methods, a transfer or pledge of the shares or any
interest therein may be effected by the making of appropriate entries on the
books of the clearing corporation reducing the account of the transferor or
pledgor and increasing the account of the transferee or pledgee by the number of
shares transferred or pledged.
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<PAGE>
Section 3. Lost Certificates. The Board of Directors or an officer so
authorized by the Board may authorize the issuance of a new certificate in place
of a certificate claimed to have been lost, destroyed or mutilated, upon receipt
of an affidavit of such fact from the persons claiming the loss or destruction
and any other documentation satisfactory to the Board of Directors or such
officer. At the discretion of the party reviewing such claim, any such claimant
may be required to give the Corporation a bond in such sum as it may direct to
indemnify the Corporation against loss from any claim with respect to the
certificate claimed to have been lost or destroyed.
Section 4. Holder of Record. Except as otherwise required by the Act,
the Corporation may treat the person in whose name the shares stand of record on
its books as the absolute owner of the shares and the person exclusively
entitled to receive notification and distributions, to vote, and to otherwise
exercise the rights, powers and privileges of ownership of such shares.
Section 5. Transfer Agent and Registrar; Regulations. The Corporation
may, if and whenever the Board of Directors so determines, maintain in the State
of North Carolina or any other state of the United States, one or more transfer
offices or agencies and also one or more registry offices which officers and
agencies may establish rules and regulations for the issue, transfer and
registration of certificates. No certificates for shares of stock of the
Corporation in respect of which a Transfer Agent and Registrar shall have been
designated shall be valid unless countersigned by such Transfer Agent and
registered by such Registrar. The Board may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates.
ARTICLE IX
INDEMNIFICATION
Section 1. Definitions. For purposes of this Article IX, the following
definitions shall apply:
(a) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the Corporation's request if such director's duties to the
Corporation also impose duties on, or otherwise involve services
by, the director to the plan or to participants in or
beneficiaries of the plan. "Director" includes,
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<PAGE>
unless the context requires otherwise, the estate or personal
representative of a director.
(b) "Expenses" means expenses of every kind incurred in defending a
proceeding, including counsel fees.
(c) "Indemnified Officer" shall mean each officer of the Corporation
who is also a director of the Corporation and each other officer
of the Corporation who is designated by the Board of Directors
from time to time as an Indemnified Officer. An Indemnified
Officer shall be entitled to indemnification hereunder to the
same extent as a director, including, without limitation,
indemnification with respect to service by the Indemnified
Officer at the Corporation's request as a director, officer,
partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to
an employee benefit plan) or reasonable expenses incurred with
respect to a proceeding.
(e) "Proceeding" means any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and any appeal
therein (and any inquiry or investigation that could lead to
such a proceeding).
Section 2. Indemnification. In addition to the indemnification otherwise
provided by law, the Corporation shall indemnify and hold harmless its directors
and Indemnified Officers (as defined herein) against all liability and expenses,
including reasonable attorneys' fees, in any proceeding (including without
limitation a proceeding brought by or on behalf of the Corporation itself)
arising out of their status as directors or officers, or their service at the
Corporation's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or their activities in any
such capacity; provided, however, that the Corporation shall not indemnify a
director or Indemnified Officer against liability or litigation expense that
such person may incur on account of activities of such person which at the time
taken were known or believed by him or her to be clearly in conflict with the
best interests of the Corporation. The Corporation shall also indemnify each
director and Indemnified Officer for reasonable costs, expenses and attorneys'
fees incurred in connection with the enforcement of the rights to
indemnification granted herein, if it is determined in accordance with Section
20
<PAGE>
3 of this Article IX that the director or Indemnified Officer is entitled to
indemnification hereunder.
Section 3. Determination. Any indemnification under Section 2 of this
Article IX shall be paid by the Corporation in a specific case only after a
determination that the director or Indemnified Officer has met the standard of
conduct set forth in such Section 2. Such determination shall be made:
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(b) if a quorum cannot be obtained under subparagraph (a), by a
majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at
the time parties to the proceeding;
(c) by special legal counsel (i) selected by the Board of Directors
or its committee in the manner prescribed in subparagraphs (a)
or (b); or (ii) if a quorum of the Board of Directors cannot be
obtained under subparagraph (a) and a committee cannot be
designated under subparagraph (b), selected by a majority vote
of the full Board of Directors (in which selection directors who
are parties may participate); or
(d) by the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
The Board of Directors shall take all such action as may be necessary
and appropriate to enable the Corporation to pay the indemnification required by
this Article IX.
Section 4. Advance for Expenses. The expenses incurred by a director or
Indemnified Officer in defending a proceeding may be paid by the Corporation in
advance of the final disposition of such proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on behalf
of the director or Indemnified Officer to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
Corporation against such expenses. Subject to receipt of such undertaking, the
Corporation shall make reasonable periodic advances for expenses pursuant to
this Section, unless the Board of Directors shall determine, in the manner
provided in Section 3 of this Article IX and based on the facts then known, that
indemnification under this Article is or will be precluded.
21
<PAGE>
Section 5. Reliance and Consideration. Any director or Indemnified
Officer who at any time after the adoption of this Article IX serves or has
served in any of the aforesaid capacities for or on behalf of the Corporation
shall be deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein. Such right,
however, shall not be exclusive of any other rights to which such person may be
entitled apart from the provisions of this Article IX. No amendment,
modification or repeal of this Article IX shall adversely affect the right of
any director or Indemnified Officer to indemnification hereunder with respect to
any activities occurring prior to the time of such amendment, modification or
repeal.
Section 6. Insurance. The Corporation may purchase and maintain
insurance on behalf of its directors, officers, employees and agents and those
persons who were serving at the request of the Corporation in any capacity in
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against or incurred by such
person in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article IX or otherwise. Any
full or partial payment made by an insurance company under any insurance policy
covering any director, officer, employee or agent made to or on behalf of a
person entitled to indemnification under this Article IX shall relieve the
Corporation of its liability for indemnification provided for in this Article or
otherwise to the extent of such payment, and no insurer shall have a right of
subrogation against the Corporation with respect to such payment.
ARTICLE X.
GENERAL PROVISIONS
Section 1. Voting of Shares. Authority to vote shares of another
corporation or of any association held by the Corporation, and to execute
proxies and written waivers and consents in relation thereto, shall be vested
exclusively in such officers and employees of this Corporation as shall be
expressly named from time to time by the Board of Directors of this Corporation
in resolutions formally adopted for that purpose.
Section 2. Distributions. The Board of Directors may from time to time
authorize, and the Corporation may pay or distribute, dividends or other
distributions on its outstanding shares in such manner and upon such terms and
conditions as are permitted by the Articles of Incorporation or the Act.
22
<PAGE>
Section 3. Seal. The Board of Directors shall provide a corporate seal
which shall be circular in form and shall have inscribed thereon the name of the
Corporation and the words "corporate seal".
Section 4. Amendments. The Board of Directors may amend or repeal these
Bylaws and may adopt new Bylaws by the affirmative vote of a majority of the
directors then holding office at any regular or special meeting of the Board of
Directors. The shareholders of the Corporation may also amend or repeal these
Bylaws and may adopt new Bylaws.
Adopted September 25, 1991
Amended January 22, 1992
Amended April 26, 1995
<PAGE>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>3
<DESCRIPTION>EXHIBIT 4(L)
<TEXT>
<PAGE>
EXHIBIT NO. 4(l)
FISCAL AND PAYING AGENCY AGREEMENT
dated as of
July 5, 1995
between
NATIONSBANK CORPORATION
and
The Chase Manhattan Bank, N.A.,
as Fiscal and Principal Paying Agent
US $500,000,000
Floating Rate Senior Notes, due 2000
<PAGE>
TABLE OF CONTENTS
1. The Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Agents . . . . . . . . . . . . . . . . . . . . . 3
3. Closing Date, Exchange of Temporary Global Note . . . . . . . . 4
4. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Surrendered Notes . . . . . . . . . . . . . . . . . . . . . . . 10
7. Mutilated, Destroyed, Stolen or Lost Notes. . . . . . . . . . . 10
8. Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Agreements Concerning Agents. . . . . . . . . . . . . . . . . . 11
10. Offices, Resignation, Successors, Etc. of Agents. . . . . . . . 14
11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12. Meetings and Votes of Holders . . . . . . . . . . . . . . . . . 16
13. Modifications, Etc. . . . . . . . . . . . . . . . . . . . . . . 20
14. Further Issuances . . . . . . . . . . . . . . . . . . . . . . . 21
15. Merger, Consolidation or Sales of Assets. . . . . . . . . . . . 21
16. Stockholders, Officers and Directors of the
Corporation Exempt from Individual Liability. . . . . . . . . . 22
17. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
19. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
20. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 24
21. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT A
EXHIBIT B
SCHEDULE I
SCHEDULE II
EXHIBIT C
EXHIBIT D
EXHIBIT E
<PAGE>
FISCAL AND PAYING AGENCY AGREEMENT, dated as of July 5, 1995 (this
"Agreement"), by and among NATIONSBANK CORPORATION, a corporation duly
organized and validly existing under the laws of the State of North Carolina
(the "Corporation"), and The Chase Manhattan Bank, N.A., London Branch, as
Fiscal and Principal Paying Agent (the "Fiscal and Principal Paying Agent"),
and The Chase Manhattan Bank Luxembourg, S.A., as paying agent (a duly
appointed "Paying Agent"), relating to the Corporation's U.S. $500,000,000
aggregate principal amount of Floating Rate Senior Notes, due 2000 (the
"Notes").
1. The Notes. (a) The Corporation has, by a Subscription Agreement,
dated July 3, 1995 (the "Subscription Agreement"), among the Corporation
and the several managers named in Schedule I thereto (the "Managers"), agreed
to issue the Notes. The Notes will constitute direct and unsecured senior
obligations of the Corporation, ranking pari passu with each other and with
all present and future unsecured and unsubordinated indebtedness of the
Corporation. Pursuant to the Subscription Agreement, the Managers may resell
the Notes to persons who are not "U.S. Persons" (as such term is defined in
Regulation S promulgated by the United States Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended
(the "Securities Act") in transactions that meet the requirements of Regulation
S (the "Offering").
(b) The Notes will initially be issued in the form of a temporary global
note, in bearer form without interest coupons, substantially in the form of
Exhibit A hereto (the "Temporary Global Note"), in a principal amount equal
to the initial aggregate principal amount of the Notes. As hereinafter
provided, interests in the Temporary Global Note will be exchangeable for
interests in a permanent global note (the "Permanent Global Note") in
bearer form without interest coupons, substantially in the form of Exhibit
B hereto, held by the Common Depositary (as defined below). In certain limited
circumstances interests in the Permanent Global Note will be exchangeable for
definitive notes (the "Definitive Notes"), in bearer form, with interest
coupons (the "Coupons") attached, substantially in the form of Exhibit C
hereto, as provided in Section 3(g), and in the denominations specified on the
reverse of the Definitive Note set forth in Exhibit C.
(c) The Corporation shall obtain an ISIN number and a Common Code
number for the Notes.
(d) The term "Notes" as used in this Agreement shall include the
Permanent Global Note, the Definitive Notes and the Coupons and, as the case
may be, the Temporary Global Note. The term "Global Note" as used in this
Agreement shall include both the Temporary Global Note and the Permanent Global
Note, each of
<PAGE>
which is a "Global Note." The term "Holders" or "Noteholders" as used in this
Agreement shall mean the several persons who are for the time being the holders
of the Notes, which expression shall, while the Notes are represented by a
Global Note, mean (other than with respect to the payment of principal and
interest on the Notes, the right to which shall be vested as against the
Corporation solely in the bearer of such Global Note in accordance with and
subject to its terms) the persons for the time being shown in the records of
Euroclear (as defined below) or Cedel (as defined below) (other than Cedel, if
Cedel shall be an accountholder of Euroclear, and Euroclear, if Euroclear shall
be an accountholder of Cedel) as the Holders of particular principal amounts of
Notes (in which regard any certificate or other document issued by Euroclear or
Cedel as to the principal amount of Notes standing to the credit of the account
of any person shall be conclusive and binding for all purposes).
(e) In compliance with United States tax laws and regulations, the Notes
may not be offered or sold during the 40-day period beginning on the
Closing Date (as hereinafter defined) or at any time if part of a
Manager's unsold allotment (the "Restricted Period") to a person who is
within the United States or to a United States Person other than (a)
foreign branches of United States financial institutions if such
institutions agree in writing to comply with the requirements of Section
165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder, (b) United States offices of exempt
distributors, or (c) United States offices of international organizations or
foreign central banks. United States tax laws and regulations also require
that the Notes in bearer form not be delivered within the United States. For
purposes of this paragraph (e), terms are defined as such terms are defined
for purposes of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)
(the "D Rules").
(f) The Notes may be redeemed by the Corporation as provided in Section
5 of the Conditions (as defined below) and Section 5 hereof. The Permanent
Global Note and the Temporary Global Note shall contain such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Agreement and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer of the Corporation
executing such Notes, as evidenced by his execution of such Note.
(g) References in this Agreement to the "Conditions" are to the
terms and conditions of the Notes as set out on the reverse side of the
form of Definitive Note included as Exhibit C hereto.
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2. Appointment of Agents.
(a) The Corporation hereby appoints The Chase Manhattan Bank, N.A.,
at its principal corporate trust office in London at Woolgate House,
Coleman Street, London EC2P 2HD, United Kingdom, as its fiscal and
principal paying agent in respect of the Notes upon the terms and subject
to the conditions herein set forth. The Chase Manhattan Bank, N.A. and its
successor or successors as such fiscal and paying agent qualified and
appointed in accordance with this section are herein called the "Fiscal
and Principal Paying Agent." The Fiscal and Principal Paying Agent shall
have the powers and authority granted to and conferred upon it herein and
in the Notes, and such further powers and authority, acceptable to it,
to act on behalf of the Corporation as the Corporation may hereafter grant
to or confer upon it in writing.
(b) The Corporation may, in its discretion, appoint one or more agents
outside the United States and its possessions (each a "Paying Agent") for the
payment (subject to applicable laws and regulations) of the principal of and any
interest and Additional Amounts, if any, (as defined in Section 4 of the
Conditions) on the Notes. The Corporation hereby appoints The Chase Manhattan
Bank Luxembourg, S.A., at its office in Luxembourg at 5 rue Plaetis, L-2338
Luxembourg-Grund, as its Paying Agent in Luxembourg. Each Paying Agent shall
have the powers and authority granted to and conferred upon it herein and
in the Notes, and such further powers and authority, acceptable to it,
to act on behalf of the Corporation as the Corporation may hereafter grant
to or confer upon it in writing. As used herein, "paying agencies" shall mean
paying agencies maintained by a Paying Agent on behalf of the Corporation
as provided elsewhere herein.
(c) The Fiscal and Principal Paying Agent may, with the written
consent of the Corporation, appoint by an instrument or instruments in
writing (in form and substance satisfactory to the Corporation) one or more
agents for the authentication of Notes on its behalf (each, an "Authenticating
Agent") and may, with such written consent, vary or terminate any such
appointment upon written notice and approve any change in the office
through which any such Authenticating Agent may act. The Corporation may
also terminate any such appointment at any time by written notice to the
Fiscal and Principal Paying Agent and the Authenticating Agent whose
appointment is to be terminated. Each such Authenticating Agent shall
accept such appointment pursuant to an instrument or instruments in
writing (in form and substance satisfactory to the Corporation) and shall
agree to act as an Authenticating Agent pursuant to the terms and conditions
of this Agreement.
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(d) The Corporation may, in its discretion, appoint one or more agents to
calculate and determine the rate and amount of interest payable in connection
with the Notes (each, an "Agent Bank"). Initially, The Chase Manhattan Bank,
N.A., London Branch, is appointed to serve in such capacity. An Agent Bank
Agreement, entered into between the Corporation and the Agent Bank, will
set forth the terms of such appointment.
3. CLOSING DATE; EXCHANGE OF TEMPORARY GLOBAL NOTE.
(a) At any time and from time to time after the execution and delivery of
this Agreement, the Corporation may deliver outside the United States Notes
executed by the Corporation in accordance with this Agreement to the Fiscal
and Principal Paying Agent for authentication (or cause an Authenticating Agent
to authenticate on its behalf) together with an officer's certificate of the
Corporation directing such authentication, and the Fiscal and Principal
Paying Agent shall thereupon authenticate (or cause to be authenticated) and
make such Notes available for delivery upon and in accordance with the written
order of the Corporation. No Note shall be valid or enforceable for any
purpose unless and until the certificate of authentication thereon shall have
been manually signed by a duly authorized signatory of the Fiscal and Principal
Paying Agent or Authenticating Agent or an attorney-in-fact duly appointed
pursuant to a valid power of attorney and such duly executed certificate of
authentication on any Note shall be conclusive evidence that the Note has been
duly authenticated and delivered hereunder.
The Corporation shall initially execute and deliver on July 5, 1995 (the
"Closing Date"), the Temporary Global Note and the Permanent Global Note to the
Fiscal and Principal Paying Agent outside the United States, and the Fiscal
and Principal Paying Agent, shall, upon the written order of the Corporation,
authenticate or cause to be authenticated the Temporary Global Note and the
Permanent Global Note and deliver the Temporary Global Note to a common
depositary outside the United States (the "Common Depositary") for the benefit
of Morgan Guaranty Trust Corporation of New York, Brussels office, as operator
of the Euroclear System ("Euroclear"), and for Cedel Bank, societe anonyme
("Cedel"). Euroclear or Cedel, as the case may be, will credit each subscriber
of Notes with a principal amount of Notes equal to the principal amount thereof
for which it has subscribed and paid. The Fiscal and Principal Paying Agent
shall retain the Permanent Global Note for the account of the Corporation until
instructed with the Common Depositary in accordance with paragraph (b) of this
Section 3, to exchange such Permanent Global Note for the Temporary Global Note
held by the Common Depositary.
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(b) On or after a date which is 40 days after the later to occur of the
commencement of the Offering or the Closing Date (the "Exchange Date"), the
Corporation shall instruct the Fiscal and Principal Paying Agent to make the
Permanent Global Note available to be exchanged for the Temporary Global Note.
If Notes are issued pursuant to Section 14 hereof (any such Notes being
referred to herein as "Additional Notes") prior to the Exchange Date, the
Exchange Date shall be deferred to a date not earlier than 40 days after the
later of the commencement of the offering of such Additional Notes and the
closing date for such Additional Notes. No interest in the Temporary Global
Note or the Permanent Global Note shall be exchangeable for definitive notes
except as provided herein.
(c) On or after the Exchange Date, the interest of a beneficial owner of
Notes represented by the Temporary Global Note shall be exchanged for an
interest in the Permanent Global Note when such beneficial owner, or, if
other than such beneficial owner, the holder of the account through which such
beneficial owner's interest is held, instructs Euroclear or Cedel, as the case
may be, to request such exchange on his behalf and (i) upon delivery by the
account holder to Euroclear or Cedel, as the case may be, of a certificate
substantially in the form set forth in Exhibit E hereto, copies of which
certificate shall be available at the offices of Euroclear and Cedel and the
Fiscal and Principal Paying Agent, and (ii) upon delivery by Euroclear or
Cedel, as the case may be, to the Fiscal and Paying Agent of a certificate
or certificates substantially in the form set forth in Exhibit D hereto.
Upon receipt of the certificate or certificates provided for in the preceding
sentence and upon presentation to it of the Temporary Global Note by the
Common Depository, the Fiscal and Principal Paying Agent shall exchange
the interest in the Temporary Global Note covered by such certification for
an interest in the Permanent Global Note. No interest shall be paid with
respect to any Note represented by the Temporary Global Note to any Holder
until the foregoing certification has been provided to Euroclear or Cedel, as
the case may be, and no interest shall be paid to Euroclear or Cedel until
the foregoing certification has been provided to the Fiscal and Principal
Paying Agent. No interest in the Temporary Global Note shall be exchanged for
an interest in the Permanent Global Note prior to the Exchange Date. The
Temporary Global Note, Permanent Global Note and any Notes in definitive form
with coupons attached will be delivered only outside the United States
(including any state of the United States and the District of Columbia),
its territories or its possessions (including Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
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(d) Upon any such exchange of a portion of the Temporary Global Note for
an interest in the Permanent Global Note, the Temporary Global Note shall be
endorsed by the Fiscal and Principal Paying Agent to reflect the reduction of
its principal amount by an amount equal to the amount so exchanged and the
Permanent Global Note shall be similarly endorsed to reflect the increase of
the principal amount evidenced thereby, whereupon its principal amount shall
be increased for all purposes by the amount so exchanged. Until so exchanged in
full, the Temporary Global Note shall in all respects be entitled to the same
benefits under this agreement as the Permanent Global Note authenticated and
delivered hereunder, except that neither the holder thereof nor the beneficial
owners of the Notes represented thereby shall be entitled to receive payment of
interest thereon. Any exchange of an interest in the Temporary Global Note for
an interest in the Permanent Global Note pursuant to this Section shall be
free of charge.
(e) The delivery to the Fiscal and Principal Paying Agent by the Euroclear
Operator or Cedel of any certificate referred to above may be relied upon by the
Corporation and the Fiscal and Principal Paying Agent as conclusive evidence
that a corresponding certificate or certificates has or have been delivered to
the Euroclear Operator or Cedel pursuant to the terms of this Agreement.
(f) Promptly after the Temporary Global Note has been exchanged in full,
it shall be surrendered by the Common Depositary to the Fiscal and Principal
Paying Agent, as the Corporation's agent.
(g) Interests in the Permanent Global Note will be exchangeable for
Definitive Notes with Coupons attached only if: (i) an Event of Default (as
defined in the Conditions) occurs and is continuing, or (ii) the Corporation is
notified that either Euroclear or Cedel has been closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory or
otherwise) after the original issuance of the Notes or has announced an
intention permanently to cease business or has in fact done so and no
alternative clearance system approved by the Holders of the Notes is available,
or (iii) the Corporation, after notice to the Fiscal and Principal Paying
Agent, determines to issue Notes in definitive form.
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4. PAYMENT.
(a) In order to provide for the payment of the principal of and interest
on and any Additional Amounts on the Notes as the same shall become due and
payable, the Corporation shall pay to the Fiscal and Principal Paying Agent at
its office in London, in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts therein, and in same-day funds, the following amounts (and the
Corporation shall give notice to the Fiscal and Principal Paying Agent at least
one full Business Day, as defined herein, prior to the date payment is due to
the Fiscal and Principal Paying Agent as to the means of such payment, if other
than by wire transfer), to be held and applied by the Paying Agent as
hereinafter set forth:
(i) The Corporation shall pay to the Fiscal and Principal Paying Agent by
11:00 A.M., New York time, on each interest payment date in same-day funds an
amount sufficient to pay the interest due on (and Additional Amounts, if any,
on) all the Notes outstanding on such interest payment date, and the Fiscal and
Principal Paying Agent shall apply the amounts so paid to it to the payment
of such interest (and Additional Amounts, if any) on such interest payment date.
(ii) If the Corporation shall elect to redeem the Notes in accordance with
Section 5 hereof, the Corporation will pay to the Fiscal and Principal Paying
Agent on the Business Day immediately prior to the date fixed for redemption
thereof in same-day funds an amount sufficient (with any amount then held by the
Fiscal and Principal Paying Agent and available for that purpose) to pay the
redemption price of the Notes called for redemption on the redemption date or
entitled to be redeemed, together with accrued interest thereon (and Additional
Amounts, if any, thereon) to the date fixed for redemption if such redemption
date occurs on an interest payment date, and the Fiscal and Principal Paying
Agent shall apply such amount to the payment of the redemption price and accrued
interest (and Additional Amounts, if any) in accordance with the Conditions.
(iii) By no later than 11:00 A.M., New York time, on the maturity date of
the Notes, the Corporation shall pay to the Fiscal and Principal Paying Agent in
same-day funds an amount which, together with any amounts then held by the
Fiscal and Principal Paying Agent, and available for payment thereof, shall be
equal to the entire amount of principal and interest (and Additional Amounts, if
any) to be due on such maturity date on all the Notes then outstanding, and the
Fiscal and Principal Paying Agent
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shall apply such amount to the payment of the principal of and interest on (and
Additional Amounts, if any, on) the Notes in accordance with the Conditions.
(iv) In connection with any payments made pursuant to this clause (a), the
Corporation shall direct the bank through which such payment shall be made to
provide to the Fiscal and Principal Paying Agent by 10:00 a.m. (London time)
two Business Days prior to the due date for any such payment an irrevocable
confirmation, by tested telex or authenticated SWIFT MT100 message, of the
Corporation's intent to make such payment.
(b) The Fiscal and Principal Paying Agent shall arrange directly with any
Paying Agent who may have been appointed by the provisions of Section 2 hereof
for the payment from funds so paid by the Corporation of the principal of and
any interest on the Notes outside the United States as set forth herein and in
the Conditions. Notwithstanding the foregoing, if the Corporation so notifies
the Fiscal and Principal Paying Agent, the Corporation may provide directly
to a Paying Agent funds for the payment of the principal and interest payable
on any Notes under an agreement with respect to such funds containing
substantially the same terms and conditions set forth in this Section 4 and in
Section 9 hereof, and the Fiscal and Principal Paying Agent shall have no
responsibility whatsoever with respect to any funds so provided by the
Corporation to any such Paying Agent. If for any reason the amounts received
by the Fiscal and Principal Paying Agent or any funds provided directly to a
Paying Agent as set forth in the previous sentence shall be insufficient to
satisfy all claims for principal and interest then due and payable on the
Notes presented to it, the Fiscal and Principal Paying Agent or such Paying
Agent, as the case may be, shall not be bound to pay any such claim until (i)
it has received the full amount of the moneys then due and payable in
respect of such Notes or (ii) other arrangements satisfactory to it have
been made.
(c) At least 15 days prior to the date on which any payment of Additional
Amounts shall be required to be made pursuant to Section 4 of the Conditions,
the Corporation will furnish each Paying Agent of the Corporation and the
Fiscal and Principal Paying Agent with a certificate of one of its duly
authorized officers instructing the Fiscal and Principal Paying Agent and each
other paying agency of the Corporation as to the amounts required (i) to be
deducted or withheld for or on account of any taxes described in Section 4
of the Conditions from a payment to be made on that date and (ii) to be paid to
each Holder of Notes as Additional Amounts pursuant to that Section. If the
foregoing amounts are not uniform for all Holders, then the Corporation's
certificate shall specify by country of residence or other factor the amounts
required to be
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deducted or withheld and to be paid as Additional Amounts for each Holder or
class of Holders of the Notes. In the absence of its receipt of any such
certificate from the Corporation, the Paying Agent may make payment without
deduction or withholding. The Corporation hereby agrees to indemnify the Paying
Agent, each other paying agency of the Corporation and the Fiscal and Principal
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without gross negligence or bad faith on their part,
arising out of or in connection with actions taken or omitted by any of them in
reliance on any certificate furnished pursuant to this Section.
(d) Subject to the foregoing provisions of this Section 4, each Note
delivered under this Agreement, or in exchange for, or in lieu of any other
Note shall carry all the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note.
(e) Notwithstanding anything in this Section to the contrary, if any
payment of interest or principal (and Additional Amounts, if any) is due on
a day that is not a Business Day, payment shall be made on the next
succeeding Business Day, with the same effect as if made on the day such
payment was due and no interest will accrue for the period after such interest
or principal payment date. A "Business Day" shall mean any day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York,
London and Luxembourg.
5. REDEMPTION. If, under the circumstances described in Section 5 of the
Conditions, the Corporation shall elect to redeem the outstanding Notes
(in whole or in part):
(a) The Corporation shall give notice to the Agents (as defined in Section
9 hereof) of its election to redeem the Notes; the Fiscal and Principal
Paying Agent shall cause to be published on behalf of and at the expense of
the Corporation any notice of redemption in accordance with the provisions of
Section 5 of the Conditions. The Fiscal and Principal Paying Agent shall send
a copy of such notice of redemption to the Corporation and each other paying
agency of the Corporation.
(b) Where partial redemptions are to be effected when there are Definitive
Notes outstanding, the Fiscal and Principal Paying Agent will select by lot the
Notes to be redeemed from the outstanding Notes in compliance with all
applicable laws and stock exchange requirements and deemed by the Fiscal and
Principal Paying Agent to be appropriate and fair; and where partial redemptions
are to be effected when there are no Definitive Notes outstanding, the rights of
Holders will be governed by the standard provisions of Euroclear and Cedel.
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Notice of any partial redemption and, when there are Definitive Notes
outstanding, of the serial numbers of the Notes so drawn will be given by the
Fiscal and Principal Paying Agent to the Holders of the Notes in accordance with
the terms of the Notes and this Agreement.
(c) Immediately prior to the date on which any notice of redemption is to
be given to the Holders of the Notes, the Corporation shall deliver to the
Fiscal and Principal Paying Agent a certificate stating that the Corporation is
entitled to effect such redemption and setting forth in reasonable detail a
statement of facts showing that all conditions precedent to such redemption have
occurred or been satisfied and shall comply with all notice requirements
provided for in the Conditions.
6. SURRENDERED NOTES. All Notes and Coupons surrendered for payment,
redemption, retirement or exchange shall be delivered outside the United States
to the Fiscal and Principal Paying Agent. In any such case, the Fiscal and
Principal Paying Agent shall cancel all Notes and Coupons not previously
canceled and shall dispose of such canceled Notes and Coupons (unless otherwise
previously requested by the Corporation). Upon such destruction, the Fiscal and
Principal Paying Agent shall provide the Corporation with a certificate to such
effect if so requested by the Corporation.
7. MUTILATED, DESTROYED, STOLEN OR LOST NOTES. The Fiscal and Principal
Paying Agent is hereby authorized, in accordance with the Conditions and this
Section, from time to time to authenticate and deliver outside the United States
Notes and Coupons in exchange for or in lieu of Notes and Coupons that
become mutilated, destroyed, stolen or lost, upon receipt of such indemnity
(including the posting of a bond at the expense of a claimant) and such other
documents or proof as may be required in form and substance satisfactory to the
Fiscal and Principal Paying Agent and the Corporation. Every Note or Coupon
authenticated and delivered in exchange for or in lieu of any such Note or
Coupons shall be considered the obligation of the Corporation and shall carry
all the rights to interest accrued and unpaid and to accrue which were carried
by such Note or Coupon. Upon the issuance of any substitute Notes or Coupons,
the Corporation 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 Fiscal and Principal Paying
Agent) connected therewith.
8. SIGNATURES. Notes shall be executed on behalf of the Corporation by its
Chairman of the Board and Chief Executive Officer or Chief Financial Officer,
any Vice President or Associate General Counsel (and any of these being
hereinafter referred to as an "Authorized Officer"). Such signatures may be
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the manual or facsimile signatures of the current or any future such officers.
Any signature in facsimile may be imprinted or otherwise reproduced on the
Notes. The Corporation may adopt and use the signature or facsimile signature of
any Authorized Officer, notwithstanding the fact that at the time the Notes
shall be authenticated and delivered, or disposed of, such Authorized Officer
shall have ceased to have held such office by virtue of which such Authorized
Officer so executed such security.
9. AGREEMENTS CONCERNING AGENTS. Each of the Fiscal and Principal Paying
Agent and any other Paying Agent (each of which is referred to herein as an
"Agent") accepts its appointment and its obligations herein and in the Notes,
upon the terms and conditions hereof and thereof, including the following, to
all of which the Corporation agrees and to all of which the rights hereunder of
the Holders from time to time of the Notes shall be subject:
(a) Each of the Agents shall be entitled to reasonable compensation
for all services rendered by such Agent, as separately agreed to from time to
time by the Corporation and such Agent, and the Corporation agrees to pay
promptly such compensation and to reimburse each of the Agents for the
reasonable out-of-pocket expenses (including, but not limited to, reasonable
counsel fees and expenses) incurred by such Agent in connection with the
services rendered by it hereunder. The Corporation also agrees to indemnify each
of the Agents and its officers, employees and agents for, and to hold it
harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability, including the reasonable
fees and expenses of its counsel) incurred without gross negligence or bad faith
on the part of such Agent or its officers, employees or agents, arising out of
or in connection with its acting as an Agent of the Corporation hereunder. The
obligations of the Corporation under this paragraph (a) shall survive payment of
the Notes or the resignation or removal of any Agent.
(b) In acting under this Agreement and in connection with the Notes,
each of the Agents of the Corporation is acting solely as agent of the
Corporation, and does not assume any obligation, or relationship of agency or
trust, for or with any of the owners or Holders of the Notes, except that all
funds held by the Agents for payment of principal of or interest on (and
Additional Amounts, if any, on) the Notes shall be held in trust but need not be
segregated from other funds except as required by law and as set forth herein
and in the Notes, and shall be applied as set forth herein and in the Notes;
provided, however, that monies paid by the Corporation to an Agent for the
payment of principal of or interest on (and Additional Amounts, if any, on)
Notes remaining unclaimed at the end of two years
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after such principal or interest (and Additional Amounts, if any) shall have
become due and payable shall be repaid to the Corporation without interest,
whereupon the aforesaid trust shall terminate and all liability of any Agent
with respect thereto shall cease. Thereafter, the Holder of such Note shall, as
an unsecured general creditor, look only to the Corporation for payment thereof.
(c) Each of the Agents may consult with one or more counsel
satisfactory to it (including counsel to the Corporation), and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(d) Each of the Agents shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered by it in reliance
upon any Note, notice, direction, consent, certificate, affidavit, statement or
other paper or document believed in good faith by such Agent to be genuine and
to have been signed by the proper party or parties.
(e) Each of the Agents, its officers, directors and employees may
become the owner of, or acquire any interest in, any Notes, with the same rights
that it would have if it were not an Agent hereunder, and may engage or be
interested in any financial or other transaction with the Corporation and its
affiliates and may act on, or as depositary, trustee or agent for, any
committee or body of Holders of Notes or other obligations of the Corporation,
as freely as if it were not an Agent.
(f) The Fiscal and Principal Paying Agent shall not be under any
liability for interest on, or have any responsibility to invest, any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Notes.
(g) The recitals contained herein and in the Notes (except in the
Fiscal and Principal Paying Agent's certificates of authentication), shall be
taken as the statements of the Corporation, and the Agents assume no
responsibility for the correctness of the same. None of the Agents makes any
representation as to the validity or sufficiency of this Agreement or the Notes
or the Corporation's Offering Circular dated July 3, 1995, or any other offering
material, except for such Agent's due authorization to execute this Agreement.
The Agents shall not be accountable for the use or application by the
Corporation of the proceeds of any Notes.
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(h) The Agents shall be obligated to perform such duties and only such
duties as are herein and in the Notes specifically set forth and no implied
duties or obligations shall be read into this Agreement or the Notes against the
Agents. The Agents shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment
or reimbursement of which within a reasonable time is not, in its reasonable
opinion, assured to it through surety or other indemnity satisfactory to such
Agents.
(i) Unless herein or in the Notes otherwise specifically provided, any
order, certificate, notice, request, direction, or other communication, from the
Corporation made by or given by it under any provision of this Agreement shall
be in writing and shall be sufficient if signed by an Authorized Officer.
(j) Anything in this Agreement to the contrary notwithstanding, none
of the Agents shall incur any liability hereunder, except as a result of gross
negligence or bad faith attributable to them or their officers or employees, and
shall incur no liability for the gross negligence or bad faith of their agents
appointed by them with due care; provided that the Agents shall notify the
Corporation of the appointment of any such agents.
(k) Except as specifically provided herein or in the Notes, none of
the Agents shall have any duty or responsibility in case of any default by the
Corporation in the performance of their obligations (including, without limiting
the generality of the foregoing, any duty or responsibility to accelerate all or
any of the Notes or to initiate or to attempt to initiate any proceedings at law
or otherwise or to make any demand for the payment thereof upon the
Corporation).
(l) Any Agent may act hereunder through its officers, employees,
agents and attorneys. No Agent shall ever be required to post a bond in
connection with the providing of its services hereunder. No Agent shall be
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of this Agreement or any part
thereof, the form or execution thereof or the identity or authority of any
person executing or acting under it. In no event shall any Agent's liability
include any special, consequential, punitive or indirect loss or damage which
the Corporation may incur or suffer in connection with this Agreement. In no
event shall an Agent be responsible for the Corporation's attorneys' fees. Each
Agent shall be protected in this Agreement in acting upon any written notice,
request, waiver, consent, certificate, authorization, power of attorney or other
paper or documents that such Agent in good faith believes to be genuine and what
it purports to be and may
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assume any person purporting to give any written notice, advice or instruction
in connection with the provisions hereof has been duly authorized to do so.
10. OFFICES, RESIGNATION, SUCCESSORS, ETC. OF AGENTS.
(a) So long as there shall be a Fiscal and Principal Paying Agent
hereunder, the Corporation shall maintain agencies outside the United States
where interests in Notes may be surrendered for payment (and for the payment of
Additional Amounts, if any), which shall include an agency in Luxembourg so long
as the Notes are listed on the Luxembourg Stock Exchange (the "LSE") and the
rules of such exchange shall so require. The Corporation now intends to maintain
additional agencies (subject to applicable laws and regulations) where an
interest in the Permanent Global Note may be surrendered for payment (and for
the payment of Additional Amounts, if any), in London, England and Luxembourg,
and during such period to keep the Agents advised of the names and locations of
such agencies. Unless the Corporation shall otherwise notify each of the Agents
in writing, the sole such paying agencies shall be the agencies specified in the
Notes. If at any time the Corporation shall fail to maintain any such required
office or agency outside the United States and, so long as the Notes are listed
on the LSE, and the rules of the LSE so require, in Luxembourg, or shall fail to
furnish the Fiscal and Principal Paying Agent with the address thereof,
presentations and surrenders of the Notes for payment may be made at the
principal office of the Fiscal and Principal Paying Agent in London. The
Corporation agrees that it will maintain at all times an office or agency in New
York City for the purpose of receiving notices and demands (other than demands
for payment) from the Holders of the Notes, but not for the purpose of making
payments in respect of the Notes.
(b) The Fiscal and Principal Paying Agent or any other Paying Agents
may at any time resign by giving written notice to the Corporation of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall never be less
than 30 days after receipt of such notice by the Corporation unless the
Corporation agrees to accept less notice. The Fiscal and Principal Paying Agent
may be removed at any time by filing with it at least 30 days prior to the date
of such proposed removal, an instrument in writing signed by an Authorized
Officer on behalf of the Corporation and specifying such removal and the date
when it is intended to become effective. Such resignation or removal shall take
effect upon the date of the appointment by the Corporation, as hereinafter
provided, of a successor Fiscal and Principal Paying Agent or other Paying Agent
of the Corporation, as the case may be, and the acceptance of such appointment
by such successor Fiscal and Principal Paying Agent provided that if the Fiscal
and Principal
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<PAGE>
Paying Agent or any other Paying Agent has attempted to resign and a successor
has not been appointed within 60 days, such Fiscal and Principal Paying Agent or
any other Paying Agent shall have the right to appoint a successor Fiscal and
Principal Paying Agent or any other Paying Agent provided that such successor
shall be of international repute. At the time of its resignation or removal, the
Fiscal and Principal Paying Agent shall be entitled to the payment by the
Corporation of its compensation for the services rendered hereunder and to the
reimbursement of all reasonable out-of-pocket expenses incurred in connection
with the services rendered hereunder. All protections and indemnities
benefitting the Fiscal and Principal Paying Agent (and any other indemnified
party hereunder) are cumulative of any other rights it (or they) may have by law
or otherwise, and shall survive the termination of this Agreement or the
resignation or removal of such Fiscal and Principal Paying Agent.
(c) In case at any time any of the Agents shall resign, or shall be
removed, or shall be incapable of acting, or shall file a voluntary petition as
a debtor under Chapter 7 or 11 of Title 11 of the United States Code or have an
order for relief entered against it as a debtor under Chapter 7 or 11 of Title
11 of the United States Code or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if an order of any court shall be entered approving any
petition filed by or against the Fiscal and Principal Paying Agent under any
legislation similar to the provisions of Title 11 of the United States Code or
against any of the Agents under the Provisions of any legislation similar to the
Provisions of Title 11 of the United States Code, or if a receiver of it or of
all or any substantial part of its property shall be appointed, or if any public
officer shall take charge or control of it or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Agent,
qualified as aforesaid, shall be appointed by the Corporation by an instrument
in writing. Upon the appointment as aforesaid of a successor Agent and
acceptance by it of such appointment, the Agent so superseded shall cease to be
such Agent hereunder. If no successor Agent shall have been so appointed by the
Corporation and shall have accepted appointment as hereinafter provided, any
Holder of a Note, on behalf of itself and all others similarly situated, or any
Agent may petition any court of competent jurisdiction for the appointment of a
successor Agent and shall promptly notify the Corporation of such action.
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<PAGE>
(d) Any successor Fiscal and Principal Paying Agent or Paying
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Corporation an instrument accepting such appointment
hereunder, and thereupon such successor Agent, without any further act, deed
or conveyance, shall become vested with all the authority, rights,
powers, trusts,immunities, duties and obligations of such predecessor with
like effect as if originally named as such Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Agent shall be entitled to receive, all monies, securities or other
property on deposit with or held by such predecessor, as such Agent
hereunder.
(e) Any corporation or bank into which any of the Agents may be
merged or converted, or any corporation or bank with which such Agent may
be consolidated, or any corporation or bank resulting from any merger,
conversion or consolidation to which such Agent shall be a party, or any
corporation or bank to which such Agent shall sell or otherwise transfer
all or substantially all the assets and business of such Agent, or any
corporation to which the Fiscal and Principal Paying Agent shall sell or
otherwise transfer all or substantially all of its corporate trust
business, provided that it shall be qualified as aforesaid, shall be the
successor to such Agent under this Agreement without the execution or
filing of any document or any further act on the part of any of the
parties hereto.
11. TAXES. The Corporation will pay all stamp taxes and other similar
duties, if any, that may be imposed by the United States of America, the
United Kingdom or Luxembourg or Hong Kong, or any state or political
subdivision thereof or taxing authority therein, with respect to the
execution or delivery of this Agreement, or the issuance of the Temporary
Global Note, or the exchange from time to time of interests in the Temporary
Global Note for an interest in the Permanent Global Note, or the exchange
of an interest in the Permanent Global Note for a Definitive Note, if available.
12. MEETINGS AND VOTES OF HOLDERS
(A) A meeting of Holders of Notes may be called at any time and
from time to time pursuant to this Section 12 for any of the following
purposes: (i) to give any notice to the Corporation or to the Fiscal and
Principal Paying Agent, or to give any directions to the Fiscal and Principal
Paying Agent, or to consent to the waiving of
any default hereunder or under the Notes and its consequences, or to take
any other action authorized to be taken by Holders of Notes pursuant to
Section 9 of the Conditions; or (ii) to take any other action authorized
to be taken by or on behalf of the Holders of any specified
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<PAGE>
aggregate principal amount of the Notes under any other provision of this
Agreement, the Conditions or under applicable law.
(b) Meetings of Holders of Notes may be held at such place or
places in the City of New York or London as the Fiscal and Principal Paying
Agent or, in case of its failure to act, the Corporation or the Holders
calling the meeting shall from time to time determine.
(c) The Fiscal and Principal Paying Agent may at any time call a
meeting of Holders of Notes to be held at such time and at such place in any
of the locations designated in Section 12(b) hereof as the Fiscal and
Principal Paying Agent shall determine. Notice of every meeting of Holders
shall be published on behalf and at the expense of the Corporation in
accordance with Section 14 of the Conditions. Such notice shall set forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, and shall be published at least twice,
the first publication to be not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(d) In case at any time the Corporation or the Holders of at least
33% in aggregate principal amount of the Notes outstanding shall have requested
the Fiscal and Principal Paying Agent to call a meeting of Holders, by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Fiscal and Principal Paying Agent shall not
have given the first notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Corporation or Holders of Notes in the
amount above specified may determine the time and the place in either of the
locations designated in Section 12(b) hereof for such meeting and may call
such meeting to take any action authorized in Section 12(a) hereof by giving
notice thereof as provided in Section 12(c) hereof.
(e) To be entitled to vote at any meeting of Holders of Notes,
a person shall be (i) a Holder of one or more Notes, or (ii) a person
appointed by an instrument in writing as proxy for a Holder or Holders of
Notes by such Holder or Holders, which proxy need not be a Holder of
Notes. 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 Fiscal and
Principal Paying Agent and its counsel and any representatives of the
Corporation and its counsel.
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<PAGE>
(f) The persons entitled to vote a majority in principal amount of
the outstanding Notes shall constitute a quorum for the transaction of all
business specified in Section 12(a) hereof. No business shall be transacted
in the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of the Holders of Notes (as provided in Section 12(d) hereof), be dissolved.
In any other case the meeting shall be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 12(c) hereof except
that such notice need be published only once but must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum the persons entitled to vote 33% in
principal amount of the Notes shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of
the aggregate principal amount of the Notes that shall constitute a quorum.
At a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid, any resolution and all matters (except as limited
by Section 9(b) of the Conditions) shall be effectively passed and decided
if passed or decided by the persons entitled to vote a majority in principal
amount of the Notes represented and voting at such meeting, provided that
such amount shall be not less than 33% in principal amount of the Notes
outstanding. Any Holder of a Note who has executed and delivered an
instrument in writing appointing a person as his proxy shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided, however, that such Holder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing.
Any resolution effectively passed or decision taken at any meeting of the
Holders of Notes duly held in accordance with this Section 12 shall be
binding on all Holders of Notes whether or not present or represented at
the meeting and whether or not notation of such decision is made upon the
Notes.
(g) Notwithstanding any other provision of this Agreement, the
Fiscal and Principal Paying Agent may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Notes in regard to proof of
the holding of Notes 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. Except as
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<PAGE>
otherwise permitted or required by any such regulations, the holding of
Notes shall be proved by the production of the Notes or by a
certificate executed, as depositary, by, and the appointment of any proxy
shall be proved by having the signature of the person executing the proxy
witnessed or guaranteed by, in each case, any trust company, bank or banker
satisfactory to the Fiscal and Principal Paying Agent. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified herein or other
proof.
(h) The Fiscal and Principal Paying Agent shall, by an instrument
in writing, appoint a temporary chairperson and a temporary secretary of
the meeting, unless the meeting shall have been called by the Corporation
or by the Holders of Notes as provided herein and in the Notes, in which
case the Corporation or the Holders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairperson and a temporary
secretary. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
(i) At any meeting each Holder or proxy shall be entitled to one
vote for each U.S. $1,000 principal amount of Notes held or represented by
such Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Notes challenged as not outstanding and ruled by the
chairperson of the meeting to be not outstanding. The chairperson of the
meeting shall have no right to vote, except as a Holder or proxy.
(j) Any meeting of Holders of Notes duly called pursuant to
Section 12(c) or 12(d) hereof at which a quorum is present may be adjourned
from time to time by vote of Holders (or proxies for Holders) of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote; and the meeting may be held as so adjourned without further notice.
(k) The vote upon any resolution submitted to any meeting of
Holders of Notes shall be by written ballots on which shall be subscribed
the signatures of Holders of Notes or of their representatives by proxy
(and the serial number or numbers of the Notes held or represented by them).
The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the
meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Notes shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of
the inspectors
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<PAGE>
of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was published as provided in
Section 12(c) or 12(d) hereof and, if applicable, Section 12(f) hereof.
Each copy shall be signed and verified by the affidavits of the chairperson
and secretary of the meeting, and one such copy shall be delivered to the
Corporation and another to the Fiscal and Principal Paying Agent to be
preserved by the Fiscal and Principal Paying Agent, the copy delivered
to the Fiscal and Principal Paying Agent to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
13. MODIFICATIONS, ETC.
(a) The Corporation and the Fiscal and Principal Paying Agent
may, without the approval of any Holders of Notes and Coupons, amend this
Agreement or the Notes and Coupons to (i) evidence the succession of another
corporation to the Corporation and the assumption by any such successor of
the covenants of the Corporation in this Agreement or the Notes and
Coupons, or (ii) add to the covenants of the Corporation for the benefit
of the Holders of the Notes and the Coupons, or surrender any right or power
conferred upon the Corporation, or (iii) relax or eliminate the restrictions
on payment of principal or interest in respect of Notes or Coupons in the
United States to the extent then permitted under applicable regulations of
the U.S. Department of the Treasury, and provided no adverse tax
consequences would result to the Holders of the Notes or Coupons, or
(iv) cure any ambiguity or correct or supplement any defective provision
herein or therein or any provision that may be inconsistent with another
provision herein or therein, or (v) permit further issuances of Notes in
accordance with Section 14 hereof, or (vi) make any other provisions with
respect to matters or questions arising under the Notes or this Agreement,
provided such action pursuant to this clause (vi) shall not be inconsistent
with the provisions of the Notes and shall not adversely affect the
interests of the Holders of the Notes or Coupons.
(b) It shall not be necessary for the vote or consent of Holders
of Notes to approve the particular form of any proposed modification,
amendment, supplement or action but it shall be sufficient if such consent
shall approve the substance thereof.
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<PAGE>
14. Further Issuances. The Corporation may from time to time without
the consent of Holders of Notes undertake further issuances of notes with
terms identical to the Notes except as to the issue date and the amount of the
first payment of interest thereon. In connection with such issuance, the
Corporation and the Fiscal and Principal Paying Agent shall enter into a
supplemental agreement hereto that, if applicable, shall provide for the
extension of the period during which interest in the Temporary Global Note
may not be exchanged for interests in the Permanent Global Note in order to
comply with Regulation S and applicable tax laws and regulations including
the D Rules; provided, however, that no such further notes may be issued
if to do so would extend the Exchange Date in respect of any Notes beyond
the first Interest Payment Date (as defined in the form of Permanent
Global Note included as Exhibit B hereto) for such Notes. Upon the issuance
of such notes in accordance herewith, such notes and the Notes shall form
part of a single class and shall have identical rights and all references
to the term "Notes" and "Coupons" hereunder shall be deemed to include such
notes and the coupons appertaining thereto.
15. Merger, Consolidation or Sale of Assets.
(a) If at any time there shall be a merger, consolidation, sale
or conveyance of assets or assumption of obligations to which any of the
covenants contained in Section 7 of the Conditions pertains, then in any such
event the successor or assuming corporation referred to therein will promptly
deliver to the Fiscal and Principal Paying Agent:
(i) a certificate signed by an Authorized Officer of such
successor or assuming corporation stating that as of the time
immediately after the effective date of any such transaction the
covenants of the Corporation contained in the Permanent Global Note
have been complied with and the successor or assuming corporation
is not in default under the provisions of this Agreement or the
Notes, as applicable; and
(ii) a written opinion of legal counsel stating that in such
such counsel's opinion the covenants of the Corporation contained in
Section 7 of the Conditions have been complied with and that any
instrument or instruments executed in the performance of such covenants
comply with the requirements thereof.
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<PAGE>
In case of any such merger, consolidation, sale, conveyance or
assumption, such successor or assuming corporation shall succeed to and be
substituted for the Corporation with the same effect, subject to (in the case
of a merger to which the Corporation is a party) Section 7(b) of the Conditions,
as if it had been named herein and in the Permanent Global Note as the
Corporation; the Corporation shall thereupon be relieved of any further
obligation or liability hereunder or upon the Notes, and the Corporation,
as the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Upon the order of such successor or
assuming corporation, instead of the Corporation, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Fiscal and
Principal Paying Agent shall authenticate and shall deliver any Notes which
previously shall have been signed and delivered by the officers of the
Corporation to the Fiscal and Principal Paying Agent for authentication, and
any Notes which such successor or assuming corporation thereafter shall
cause to be signed and delivered to the Fiscal and Principal Paying Agent
for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Notes theretofore or
thereafter issued in accordance with the terms of this Agreement as though
all of such Notes had been issued at the date of the execution hereof.
In case of any merger, consolidation, sale, conveyance or assumption,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
(b) The Fiscal and Principal Paying Agent may rely on the documents
delivered to it pursuant to this Agreement by any successor or assuming
corporation pursuant to this Section 15 as conclusive evidence that any such
merger, consolidation, sale, conveyance or assumption complies with the
provisions of this Section and the Notes.
16. Stockholders, Officers and Directors of the Corporation Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or
agreement contained in this Agreement, or in any Note, or because of any
indebtedness evidenced thereby, shall be had against any past, present or
future stockholder, officer, director or employee, as such, of the
Corporation or of any successor, either directly or through the Corporation
or any successor, under any rule or law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding
or otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holders thereof and as part of the
consideration for the issue of the Notes.
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<PAGE>
17. GOVERNING LAW. THIS AGREEMENT, THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
18. Amendments. This Agreement may be amended by the parties hereto,
and certain provisions hereof may be waived, in the manner provided in Section
9 of the Conditions. This Agreement may also be amended by the parties hereto,
without the consent of the Holder of any Note, for the purposes set forth in
Section 8 of the Conditions.
19. Notices. All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
Address
The Corporation: NationsBank Corporation
NationsBank Corporate Center
NC 1007-23-1
Charlotte, North Carolina 28255
Attn: Treasurer
with a copy to:
NationsBank Corporation
NationsBank Corporate Center
Legal Department
NC 1007-20-1
Charlotte, North Carolina 28255
Attn: Paul J. Polking,
General Counsel
The Fiscal and Principal Paying Agent:
The Chase Manhattan Bank, N.A.
Woolgate House
Coleman Street
London EC2P 2HD
United Kingdom
Attn: Manager, Corporate Trust
Operations
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<PAGE>
The Paying Agent:
The Chase Manhattan Bank
Luxembourg S.A.
5 rue Plaetis
L-2338 Luxembourg - Grund.
or at any other address of which any of the foregoing shall have notified the
others in writing.
So long as the Notes are represented by the Temporary Global Note or the
Permanent Global Note, notices to Holders of the Notes may be given by delivery
of the relevant notice to Euroclear and Cedel for communication by them to the
relevant account holders and a common depositary; provided, however, that
for so long as the Notes are listed on the LSE and the rules of such exchange
shall so require, the Corporation shall also give notice by publication in
a daily newspaper of general circulation in Luxembourg; and provided further
that for so long as the Notes are listed on the Stock Exchange of Hong Kong
(the "HKSE") and the rules of such exchange shall so require. The Corporation
shall also give notice by publication in a daily newspaper of general
circulation in Hong Kong. The corporation may, but need not, cause such
notice to be given by publication in the Luxembourger Wort and in the
South China Morning Post, for Luxembourg and Hong Kong, respectively.
20. Counterparts. This Agreement may be executed in separate
counterparts, and by each party separately in a separate counterpart, each
such counterpart, when so executed and delivered, to be an original. Such
counterparts shall together constitute but one and the same instrument.
21. Headings. The descriptive headings appearing herein are for
convenience of reference only and shall not alter, limit or define the
provisions hereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NATIONSBANK CORPORATION
By: /s/ John E. Mack
Name: John E. Mack
Title: Senior Vice President
and Treasurer
By or on behalf of
THE CHASE MANHATTAN BANK, N.A.
as Fiscal and Principal Paying Agent
By: /s/
Name: S. Kaufmann
Title: Senior Vice President
THE CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By: /s/
Name: S. Kaufman
Title: Senior Vice President
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>4
<DESCRIPTION>EXHIBIT 4(M)
<TEXT>
10-K Exhibit 4.(m)
AGENCY AGREEMENT
relating to
NATIONSBANK CORPORATION,
U.S.$1,500,000,000
Euro Medium-Term Note Program
among
NATIONSBANK CORPORATION
as Issuer
and
THE CHASE MANHATTAN BANK, N.A., London Branch
as Issuing and Principal Paying Agent
and
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
Dated as of November 8, 1995
<PAGE>
INDEX
Clause Page
1. Definitions and Interpretation................................... 1
2. Appointments of Agent, Paying Agents
and Calculation Agents......................................... 3
3. Issue of Temporary Global Notes.................................. 4
4. Determination of Exchange Date, Issue of Permanent
Global Notes or Definitive Notes and
Determination of Restricted Period............................. 5
5. Issue of Definitive Notes........................................ 6
6. Terms of Issue................................................... 6
7. Payments......................................................... 7
8. Determination and Notifications in Respect of
Notes and Interest Determination............................... 9
9. Notice of any Withholding or Deduction........................... 12
10. Duties of the Agent in Connection with Early
Redemption..................................................... 12
11. Receipt and Publication of Notices; Receipt of
Certificates................................................... 13
12. Cancellation of Notes, Receipts, Coupons and Talons.............. 13
13. Issue of Replacement Notes, Receipts, Coupons and
Talons......................................................... 14
14. Copies of Documents Available for Inspection..................... 15
15. Meetings of Noteholders.......................................... 16
16. Repayment by the Agent........................................... 16
17. Conditions of Appointment........................................ 16
18. Communication Between the Parties................................ 17
19. Change in Agent and Paying Agents................................ 17
20. Merger and Consolidation......................................... 19
21. Notification of Changes to Paying Agents......................... 19
22. Change of Specified Office....................................... 19
23. Notices.......................................................... 20
24. Taxes and Stamp Duties........................................... 21
25. Commissions, Fees and Expenses................................... 21
26. Indemnity........................................................ 21
27. Reporting........................................................ 22
28. Governing Law.................................................... 22
29. Amendments....................................................... 23
30. Descriptive Headings............................................. 24
31. Counterparts..................................................... 24
Schedule 1 -- Form of Temporary Global Note
Schedule 2 -- Form of Permanent Global Note
Schedule 3 -- Form of Definitive Note, Coupon, Receipt and Talon
Schedule 4 -- Terms and Conditions
Schedule 5 -- Form of Certificate to be Presented by Euroclear or Cedel
Schedule 6 -- Form of Certificate of Beneficial Owner
Schedule 7 -- Provision for Meetings of Noteholders
Schedule 8 -- Form of Put Notice
Schedule 9 -- Form of Calculation Agency Agreement
<PAGE>
THIS AGREEMENT is made as of November 8, 1995 among:
(i) NationsBank Corporation (the "Corporation");
(ii) The Chase Manhattan Bank, N.A., London Branch (the "Agent" and the
"Issuing and Principal Paying Agent"); and
(iii) Chase Manhattan Bank Luxembourg S.A. (the "Paying Agent").
WHEREAS, the Corporation proposes to issue up to U.S.$1,500,000,000 (or its
equivalent in other currencies) in aggregate principal amount of Euro Medium-
Term Notes (the "Notes") outstanding at any one time;
WHEREAS, Notes will be issued in the denominations specified in the
relevant Pricing Supplement issued in connection with each Series and each
Tranche of Notes;
WHEREAS, beneficial interests in each Tranche of Notes will initially be
represented by a Temporary Global Note, exchangeable, as provided in such
Temporary Global Note, for beneficial interests in a Permanent Global Note and,
only under limited circumstances, beneficial interests in a Global Note may be
exchangeable for Definitive Notes, in each case in accordance with the terms of
the Global Notes; and
NOW, THEREFORE, it is agreed as follows:
1. Definitions and Interpretation
(1) Terms and expressions defined in the Program Agreement or the Notes
or used in the applicable Pricing Supplement shall have the same meanings in
this Agreement, except where the context requires otherwise.
(2) Without prejudice to the foregoing in this Agreement:
"outstanding" means, in relation to the Notes, all the Notes issued other
than (a) those which have been redeemed in accordance with the Terms and
Conditions, (b) those in respect of which the date for redemption in accordance
with the Terms and Conditions has occurred and the redemption moneys (including
all interest accrued on such Notes to the date for such redemption and any
interest or other amounts payable under the Terms and Conditions after such
date) have been duly paid to the Agent as provided in this Agreement and remain
available for payment against presentation and surrender of Notes and/or
Receipts and/or Coupons, as the case may be, (c) those which have become void
under Condition 8, (d) those which have been purchased and canceled as provided
in Condition 6 (or as provided in the Global Notes), (e) those mutilated or
defaced Notes which have been surrendered in exchange for replacement Notes
pursuant to Condition 10, (f) (for the purposes only of determining how many
Notes are outstanding and without prejudice to their status for any other
purpose) those Notes alleged to have been lost, stolen or destroyed and in
respect of which replacement Notes have been issued pursuant to Condition 10,
(g) any Temporary Global Note to the extent that it shall have been exchanged
for a Permanent Global Note, in each case pursuant to their respective
provisions; provided that for the purposes of (i) ascertaining the right to
attend and vote at any meeting of the Noteholders and (ii) the determination
of how many Notes are outstanding for the purposes of Schedule 7, those Notes
which are beneficially held by, or are held on behalf of, the Corporation or
any of its affiliates shall (unless and until ceasing to be so held) be deemed
not to remain outstanding;
<PAGE>
"Paying Agents" means the Issuing and Principal Paying Agent and the Paying
Agent referred to above and such other Paying Agent or Agents as may be
appointed from time to time hereunder, and
(3) The term "Notes" as used in this Agreement shall include the
Permanent Global Note, the Definitive Notes and the Coupons and, as the case may
be, the Temporary Global Note. The term "Global Note" as used in this Agreement
shall include both the Temporary Global Note and the Permanent Global Note,
each of which is a "Global Note." The term "Noteholders" as used in this
Agreement shall mean the several persons who are for the time being the holders
of the Notes, which expression shall, while the Notes are represented by a
Global Note, mean (other than with respect to the payment of principal and
interest on the Notes, the right to which shall be vested as against the
Corporation solely in the bearer of such Global Note in accordance with and
subject to its terms) the persons for the time being shown in the records of
Euroclear (as defined below) or Cedel (as defined below) (other than Cedel,
if Cedel shall be an accountholder of Euroclear, and Euroclear, if Euroclear
shall be an accountholder of Cedel) as the Noteholders of particular principal
amounts of Notes (in which regard any certificate or other document issued by
Euroclear or Cedel as to the principal amount of Notes standing to the credit
of the account of any person shall be conclusive and binding for all purposes).
(4) For purposes of this Agreement, the Notes of each Series shall form
a separate series of Notes and the provisions of this Agreement shall apply
mutatis mutandis separately and independently to the Notes of each Series and
in such provisions the expressions "Notes", "Noteholders", "Receipts",
"Receiptholders", "Coupons", "Couponholders", "Talons" and "Talonholders" shall
be construed accordingly.
(5) All references in this Agreement to principal and/or interest or
both in respect of the Notes or to any moneys payable by the Corporation under
this Agreement shall have the meaning set out in Condition 5.
(6) All references in this Agreement to the "relevant currency" shall
be construed as references to the currency (which term shall, for these
purposes, be deemed to include ECU) in which the relevant Notes and/or Coupons
are denominated (or payable in the case of Dual Currency Notes) or, in the case
of Notes denominated in ECU, the chosen currency (as defined in Condition 5(c))
in which payments in respect of such Notes are to be made, as the case may be.
(7) In this Agreement, Clause headings are inserted for convenience and
ease of reference only and shall not affect the interpretation of this
Agreement. All references in this Agreement to the provisions of any statute
shall be deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted or to any statutory instrument, order or
regulation made thereunder or under such re-enactment.
(8) All references in this Agreement to an agreement, instrument or
other document (including, without limitation, this Agreement, the Program
Agreement, the Notes and any Terms and Conditions appertaining thereto) shall
be construed as a reference to that agreement, instrument or document as the
same may be amended, modified, varied or supplemented from time to time.
(9) Any references herein to Euroclear and/or Cedel shall, whenever
the context so permits, be deemed to include a reference to any additional or
alternative clearance system approved by the Corporation and the Agent.
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2. Appointments of Agent, Paying Agents and Calculation Agents
(1) The Corporation hereby appoints The Chase Manhattan Bank, N.A.,
London Branch, as Agent and The Chase Manhattan Bank, N.A., London Branch hereby
accepts such appointment as agent of the Corporation, upon the terms and subject
to the conditions set out below, for the purposes of, inter alia:
(a) completing, authenticating and delivering Global Notes and
(if required) authenticating and delivering Definitive Notes;
(b) exchanging Temporary Global Notes for Permanent Global Notes
or Definitive Notes, as the case may be, in accordance with the terms of
such Temporary Global Notes;
(c) under limited circumstances, exchanging Permanent Global
Notes for Definitive Notes in accordance with the terms of such Permanent
Global Notes;
(d) paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(e) determining the end of the Restricted Period applicable to
each Tranche;
(f) unless otherwise specified in the applicable Pricing
Supplement, determining the interest and/or other amounts payable in
respect of the Notes in accordance with the Terms and Conditions;
(g) arranging on behalf of the Corporation for notices to be
communicated to the Noteholders;
(h) preparing and sending monthly reports to the Ministry of
Finance of Japan (the "MoF") and the German Central Bank and subject to
confirmation from the Corporation for the need for such further reporting
ensuring that all necessary action is taken to comply with any reporting
requirements of any competent authority of any relevant currency as may be
in force from time to time with respect to the Notes to be issued under the
Program;
(i) subject to the Procedures Memorandum, submitting to the Stock
Exchange such number of copies of each Pricing Supplement which relates to
Notes which are to be listed as it may reasonably require;
(j) receiving notice from Euroclear and/or Cedel relating to the
Certificates of non-U.S. beneficial ownership of the Notes; and
(k) performing all other obligations and duties imposed upon it
by the Terms and Conditions and this Agreement.
(2) The Corporation may, in its discretion, appoint one or more agents
outside the United States and its possessions (each a "Paying Agent") for the
payment (subject to applicable laws and regulations) of the principal of and
any interest and Additional Amounts, if any, (as defined in Section 5 of the
Terms and Conditions) on the Notes. The Corporation hereby appoints Chase
Manhattan Bank, Luxembourg S.A., at its office in Luxembourg at 5 rue Plactis,
L-2338 Luxembourg-Grund, as its Paying Agent in Luxembourg. Each Paying Agent
shall have the powers and authority granted to and conferred
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upon it herein and in the Notes, and such further powers and authority,
acceptable to it, to act on behalf of the Corporation as the Corporation may
hereafter grant to or confer upon it in writing. As used herein, "paying
agencies" shall mean paying agencies maintained by a Paying Agent on behalf
of the Corporation as provided elsewhere herein.
(3) The Corporation will appoint an agent to make certain calculations
with respect to the Notes (the "Calculation Agent") pursuant to the Terms and
Conditions.
3. Issue of Temporary Global Notes
(1) Subject to sub-clause (2), following receipt of a notification from
the Corporation in respect of an issue of Notes (such notification being by
receipt of a confirmation (a "Confirmation"), substantially in the applicable
form set out in the Procedures Memorandum) the Agent will take the steps
required of the Agent in the Procedures Memorandum. For this purpose the Agent,
is hereby authorized on behalf of the Corporation:
(a) to prepare a Temporary Global Note in accordance with such
Confirmation by attaching a copy of the applicable Pricing Supplement
to a copy of the relevant master Temporary Global Note;
(b) to authenticate (or cause to be authenticated) such
Temporary Global Note;
(c) to deliver such Temporary Global Note to the specified
common depositary of Euroclear and/or Cedel in accordance with the
Confirmation against receipt from the common depositary of confirmation
that such common depositary is holding the Temporary Global Note in safe
custody for the account of Euroclear and/or Cedel and to instruct
Euroclear or Cedel or both of them (as the case may be) unless otherwise
agreed in writing between the Agent and the Corporation (i) in the case of
an issue of Notes on a non-syndicated basis, to credit the Notes
represented by such Temporary Global Note to the Agent's distribution
account, and (ii) in the case of Notes issued on a syndicated basis, to
hold the Notes represented by such Temporary Global Note to the
Corporation's order; and
(d) to ensure that the Notes of each Tranche are assigned a
Common Code and ISIN by Euroclear and Cedel which are different from the
Common Code and ISIN assigned to Notes of any other Tranche of the same
Series until 40 days after the completion of the distribution of the Notes
of such Tranche as notified by the Agent to the relevant Dealer.
(2) The Agent shall only be required to perform its obligations under
sub-clause (1) if it holds:
(a) master Temporary Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the Corporation, which
may be used by the Agent for the purpose of preparing Temporary Global
Notes in accordance with paragraph (a) of that sub-clause; and
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(b) master Permanent Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the Corporation, which
may be used by the Agent for the purpose of preparing Permanent Global
Notes in accordance with Clause 4 below.
(3) The Agent will provide Euroclear and/or Cedel with the
notifications, instructions or other information to be given by the Agent to
Euroclear and/or Cedel in accordance with the standard procedures of Euroclear
and/or Cedel.
4. Determination of Exchange Date, Issue of Permanent Global Notes or
Definitive Notes and Determination of Restricted Period
(1) (a) The Agent shall determine the Exchange Date for each
Temporary Global Note in accordance with the terms thereof. Forthwith
upon determining the Exchange Date in respect of any Tranche the Agent
shall notify such determination to the Corporation, the relevant Dealer,
Euroclear and Cedel.
(b) The Agent shall deliver, upon notice from Euroclear
or Cedel, a Permanent Global Note or Definitive Notes, as the case may be,
in accordance with the terms of the Temporary Global Note. Upon any such
exchange of a portion of a Temporary Global Note for an interest in a
Permanent Global Note the Agent is hereby authorized on behalf of the
Corporation:
(i) in the case of the first Tranche of any Series of
Notes, to prepare and complete a Permanent Global Note in
accordance with the terms of the Temporary Global Note applicable
to such Tranche by attaching a copy of the applicable Pricing
Supplement to a copy of the relevant master Permanent Global
Note;
(ii) in the case of the first Tranche of any Series of
Notes, to authenticate such Permanent Global Note;
(iii) in the case of the first Tranche of any Series of
Notes, to deliver such Permanent Global Note to the common
depositary which is holding the Temporary Global Note applicable to
such Tranche for the time being on behalf of Euroclear and/or Cedel
either in exchange for such Temporary Global Note or, in the case of
a partial exchange, on entering details of such partial exchange of
the Temporary Global Note in the relevant spaces in Schedule
2 of both the Temporary Global Note and the Permanent Global
Note, and in either case against receipt from the common
depositary of confirmation that such common depositary is
holding the Permanent Global Note in safe custody for the
account of Euroclear and/or Cedel; and
(iv) in any other case, to attach a copy of the applicable
Pricing Supplement to the Permanent Global Note applicable to the
relevant Series and enter details of any exchange in whole or part
as aforesaid.
(2) (a) In the case of a Tranche in respect of which there is only
one Dealer, the Agent will determine the end of the Restricted Period in
respect of such Tranche as being the fortieth day following the date
certified by the relevant Dealer to the Agent as being the date as of which
distribution of the Notes of that Tranche was completed.
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(b) In the case of a Tranche in respect of which there is more
than one Dealer but is not issued on a syndicated basis, the Agent will
determine the end of the Restricted Period in respect of such Tranche as
being the fortieth day following the latest of the dates certified by all
the relevant Dealers to the Agent as being the respective dates as of
which distribution of the Notes of that Tranche purchased by each such
dealer was completed.
(c) In the case of a Tranche issued on a syndicated basis, the
Agent will determine the end of the Restricted Period in respect of such
Tranche as being the fortieth day following the date certified by the
Lead Manager to the Agent as being the date as of which distribution of
the Notes of that Tranche was completed.
(d) Forthwith upon determining the end of the Restricted Period
in respect of any Tranche, the Agent shall notify such determination to the
Corporation and the relevant Dealer or the Lead Manager in the case of a
syndicated issue.
5. Issue of Definitive Notes
(1) Interests in a Global Note will be exchangeable for Definitive Notes
with Coupons attached only if: (i) an Event of Default (as defined in the Terms
and Conditions) occurs and is continuing, or (ii) the Corporation is notified
that either Euroclear or Cedel has been closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or otherwise)
after the original issuance of the Notes or has announced an intention
permanently to cease business or has in fact done so and no alternative
clearance system approved by the Noteholders is available, or (iii) the
Corporation, after notice to the Agent, determines to issue Notes in definitive
form. Upon the occurrence of these events, the Agent shall deliver the relevant
Definitive Note(s) in accordance with the terms of the relevant Global Note.
For this purpose the Agent is hereby authorized on behalf of the
Corporation:
(a) to authenticate such Definitive Note(s) in accordance with
the provisions of this Agreement; and
(b) to deliver such Definitive Note(s) to or to the order of
Euroclear and/or Cedel in exchange for such Global Note.
The Agent shall notify the Corporation forthwith upon receipt of a request for
issue of (a) Definitive Note(s) in accordance with the provisions of a Global
Note and this Agreement (and the aggregate principal amount of such Temporary
Global Note or Permanent Global Note, as the case may be to be exchanged in
connection therewith).
(2) The Corporation undertakes to deliver to the Agent sufficient
numbers of executed Definitive Notes with, if applicable, Receipts, Coupons and
Talons attached to enable the Agent to comply with its obligations under this
Clause 5.
6. Terms of Issue
(1) The Agent shall cause all Temporary Global Notes, Permanent Global
Notes and Definitive Notes delivered to and held by it under this Agreement to
be maintained in safe custody and shall ensure that such Notes are issued only
in accordance with the provisions of this Agreement and the relevant Global Note
and Terms and Conditions.
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(2) Subject to the procedures set out in the Procedures Memorandum, for
the purposes of Clause 3(1) the Agent is entitled to treat a telephone, telex
or facsimile communication from a person purporting to be (and who the Agent
believes in good faith to be) the authorized representative of the Corporation
named in the lists referred to in, or notified pursuant to, Clause 17(7) as
sufficient instructions and authority of the Corporation for the Agent to act
in accordance with Clause 3(1).
(3) In the event that a person who has signed on behalf of the
Corporation any Note not yet issued but held by the Agent in accordance with
Clause 3(1) ceases to be authorized as described in Clause 17(7), the Agent
shall (unless the Corporation gives notice to the Agent that Notes signed by
that person do not constitute valid and binding obligations of the Corporation
or otherwise until replacements have been provided to the Agent) continue to
have authority to issue any such Notes, and the Corporation hereby warrants to
the Agent that such Notes shall, unless notified as aforesaid, be valid and
binding obligations of the Corporation. Promptly upon such person ceasing to be
authorized, the Corporation shall provide the Agent with replacement Notes and
upon receipt of such replacement Notes the Agent shall cancel and destroy the
Notes held by it which are signed by such person and shall provide to the
Corporation a confirmation of destruction in respect thereof specifying the
Notes so canceled and destroyed.
(4) If the Agent pays an amount (the "Advance") to the Corporation on
the basis that a payment (the "Payment") has been, or will be, received from a
Dealer and if the Payment is not received by the Agent on the date the Agent
pays the Corporation, the Agent shall notify the Corporation by tested
telex or facsimile that the Payment has not been received and the Corporation
shall repay to the Agent the Advance and shall pay interest on the Advance
(or the unreimbursed portion thereof) from (and including) the date such
Advance is made to (but excluding) the earlier of repayment of the Advance
and receipt by the Agent of the Payment (at a rate quoted at that time by the
Agent as its cost of funding the Advance).
(5) Except in the case of issues where the Agent does not act as
receiving bank for the Corporation in respect of the purchase price of the Notes
being issued, if on the relevant Issue Date a Dealer does not pay the full
purchase price due from it in respect of any Note (the "Defaulted Note") and,
as a result, the Defaulted Note remains in the Agent's distribution account with
Euroclear and/or Cedel) after such Issue Date, the Agent will continue to hold
the Defaulted Note to the order of the Corporation. The Agent shall notify the
Corporation forthwith of the failure of the Dealer to pay the full purchase
price due from it in respect of any Defaulted Note and, subsequently, shall
notify the Corporation forthwith upon receipt from the Dealer of the full
purchase price in respect of such Defaulted Note.
7. Payments
(1) The Agent shall advise the Corporation, no later than ten Business
Days (as defined below) immediately preceding the date on which any payment is
to be made to the Agent pursuant to this sub-clause (1) of the payment amount,
value date and payment instructions and the Corporation will before 10:00 a.m.
New York time on each date on which any payment in respect of any Notes issued
by it becomes due, transfer to an account specified by the Agent such amount in
the relevant currency as shall be sufficient for the purposes of such payment
in funds settled through such payment system as the Agent and the Corporation
may agree.
(2) The Corporation will ensure that no later than 4:00 p.m. (London
time) on the second Business Day (as defined below) immediately preceding the
date on which any payment is to be made to the Agent pursuant to sub-clause
(1), the Agent shall receive from the paying bank of the Corporation an
irrevocable confirmation in the form of a SWIFT message on tested telex that
such payment shall be made. For the purposes of this Clause 7 "Business Day"
means a day which is both:
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(a) a day (other than a Saturday or a Sunday) on which
commercial banks and foreign exchange markets settle payments in London and
in Charlotte, North Carolina; and
(b) either (1) in relation to a payment to be made in a Specified
Currency other than ECU, a day on which commercial banks and foreign
exchange markets settle payments in the principal financial center of the
country of the relevant Specified Currency (if other than London) or (2) in
relation to a payment to be made in ECU, an ECU Settlement Day.
(3) The Agent shall ensure that payments of both principal and interest
in respect of any Temporary Global Note will be made only to the extent that
certification of non-U.S. beneficial ownership as required by U.S. securities
laws and U.S. Treasury regulations (in the form set out in the Temporary Global
Note) has been received from Euroclear and/or Cedel in accordance with the terms
thereof.
(4) Subject to the receipt by the Agent of the payment confirmation as
provided in sub-clause (2) above, the Agent or the relevant Paying Agent shall
pay or cause to be paid all amounts due in respect of the Notes on behalf of
the Corporation in the manner provided in the Terms and Conditions. If any
payment provided for in sub-clause (1) is made late but otherwise in accordance
with the provisions of this Agreement, the Agent and each Paying Agent shall
nevertheless make payments in respect of the Notes as aforesaid
following receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion that
the amounts to be received by the Agent pursuant to sub-clause (1) will be, or
the amounts actually received by it pursuant thereto are, insufficient to
satisfy all claims in respect of all payments then falling due in respect of the
Notes, neither the Agent nor any Paying Agent shall be obliged to pay any such
claims until the Agent has received the full amount of all such payments.
Should the Agent or any Paying Agent elect not to make payment of amounts
falling due in respect of the Notes as aforesaid, it shall advise the
Corporation of any such decision as soon as practicable by telephone with
confirmation by telefax.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays any
amounts to the holders of Notes, Receipts or Coupons or to any Paying Agent at a
time when it has not received payment in full in respect of the relevant Notes
in accordance with sub-clause (1) (the excess of the amounts so paid over the
amounts so received being the "Shortfall"), the Corporation will, in addition to
paying amounts due under sub-clause (1), pay to the Agent on demand interest (at
at rate which represents the Agent's cost of funding the Shortfall) on the
Shortfall (or the unreimbursed portion thereof) until the receipt in full by the
Agent of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in accordance
with this Agreement and the Terms and Conditions unless the Agent has notified
the Paying Agent, prior to the opening of business in the location of the office
of the Paying Agent through which payment in respect of the Notes can be made
prior to the day on which such Agent has to give payment instructions in respect
of the due date of a payment in respect of the Notes, that the Agent does not
expect to receive sufficient funds to make payment of all amounts falling due in
respect of such Notes.
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(8) If the Agent pays out on or after the due date therefor, or becomes
liable to pay out, funds on the assumption that the corresponding payment by
the Corporation has been or will be made and such payment has in fact not been
so made by the Corporation, then the Corporation shall on demand reimburse the
Agent for the relevant amount, and pay interest to the Agent on such amount from
the date on which it is paid out to the date of reimbursement at a rate per
annum equal to the cost to the Agent of funding the amount paid out, as
certified by the Agent and expressed as a rate per annum. For the avoidance of
doubt, the provisions of the Terms and Conditions as to subordination shall not
apply to the Corporation's obligations under this sub-clause 8.
(9) While any Notes are represented by a Global Note or Global Notes,
all payments due in respect of such Notes shall be made to, or to the order of,
the holder of the Global Note or Global Notes, subject to and in accordance with
the provisions of the Global Note or Global Notes. On the occasion of any such
payment the Paying Agent to which any Global Note was presented for the purpose
of making such payment shall cause the appropriate Schedule to the relevant
Global Note to be annotated so as to evidence the amounts and dates of such
payments of principal and/or interest as applicable.
(10) If a payment in respect of a Note denominated in ECU is to be made
in a chosen currency:
(i) the Agent shall choose a component currency of the ECU as the
chosen currency as provided in Condition 5(c) and shall forthwith notify
the Corporation, the other Paying Agents and the Stock Exchange;
(ii) the Agent shall promptly perform the duties required of it
under Condition 5(c); and
(iii) the Agent shall notify the Corporation and the other Paying
Agents of the amount payable per Note and Coupon in the chosen currency.
(11) If the amount of principal and/or interest then due for payment is
not paid in full (otherwise than by reason of a deduction required by law to be
made therefrom), the Paying Agent to which a Note is presented for the purpose
of making such payment shall make a record of such shortfall on the Note and
such record shall, in the absence of manifest error, be prima facie evidence
that the payment in question has not to that extent been made.
8. Determinations and Notifications in Respect of Notes
and Interest Determination
(a) Determinations and Notifications
(1) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Terms and Conditions,
all subject to and in accordance with the Terms and Conditions, provided that
certain calculations with respect to the Notes, and associated publication or
notification, shall be made by the Calculation Agent in accordance with the
Terms and Conditions.
(2) The Agent or the Calculation Agent, as the case may be, shall not be
responsible to the Corporation or to any third party (except in the event of
negligence, default or bad faith of the Agent or the Calculation Agent) as a
result of the Agent or the Calculation Agent having acted in good faith on any
quotation given by any Reference Bank which subsequently may be found to be
incorrect.
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(3) The Agent or the Calculation Agent, as the case may be, shall
promptly notify (and confirm in writing to) the Corporation, the other Paying
Agents and (in respect of a Series of Notes listed on a Stock Exchange) the
relevant Stock Exchange of, inter alia, each Rate of Interest, Interest Amount
and Interest Payment Date and all other amounts, rates and dates which it is
obliged to determine or calculate under the Terms and Conditions as soon as
practicable after the determination thereof (and in any event no later than the
tenth Business Day as defined in Clause 7(2) immediately preceding the date
on which payment is to be made to the Agent pursuant to Clause 7(1) and of any
subsequent amendment thereto pursuant to the Terms and Conditions.
(4) The Agent or the Calculation Agent, as the case may be, shall use
its best efforts to cause each Rate of Interest, Interest Amount and Interest
Payment Date and all other amounts, rates and dates which it is obliged to
determine or calculate under the Terms and Conditions to be published as
required in accordance with the Terms and Conditions as soon as possible after
their determination or calculation.
(5) If the Agent or the Calculation Agent, as the case may be, does not
at any material time for any reason determine and/or calculate and/or publish
the Rate of Interest, Interest Amount and/or Interest Payment Date in respect
of any Interest Period or any other amount, rate or date as provided in this
Clause 8, it shall forthwith notify the Corporation and the Paying Agent of
such fact.
(6) Determinations with regard to Notes (including, without limitation,
Indexed Notes and Dual Currency Notes) shall be made by the Calculation Agent
specified in the applicable Pricing Supplement in the manner specified in the
applicable Pricing Supplement. Unless otherwise agreed between the Corporation
and the relevant Dealer, such determinations shall be made on the basis of a
Calculation Agency Agreement substantially in the form of Schedule 9 to this
Agreement.
(7) For the purposes of monitoring the aggregate principal amount of
Notes issued under the Program, the Agent shall determine the U.S. dollar
equivalent of the principal amount of each issue of Notes denominated in
another currency, each issue of Dual Currency Notes and each issue of Indexed
Notes as follows:
(a) the U.S. dollar equivalent of Notes denominated in a currency
other than U.S. Dollars shall be determined by the Agent as of the date of
the agreement to issue such Notes or on the preceding day on which
commercial banks and foreign exchange markets are open for business in
London, in each case on the basis of the spot rate for the sale of the U.S.
dollar against the purchase of such other currency in the London foreign
exchange market quoted by any leading bank selected by the Agent;
(b) the U.S. dollar equivalent of Dual Currency Notes, Indexed
Notes and Partly Paid Notes shall be determined in the manner specified
above by reference to the original principal amount of such Notes; and
(c) the U.S. dollar equivalent of Zero Coupon Notes and other
Notes issued at a discount shall be deemed to be the net proceeds received
by the Company for the relevant issue.
(b) Interest Determinations, Screen Rate Determination
including Fallback Provisions
(1) Where screen rate determinations ("Screen Rate Determination") is
specified in the applicable Pricing Supplement as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Period
will, subject as provided below, be either:
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(A) the offered quotation (if there is only one quotation on the
relevant screen page (the "Relevant Screen Page")); or
(B) the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum), for the reference rate ("Reference
Rate") which appears or appear, as the case may be, on the Relevant Screen Page
at approximately 11:00 a.m. (London time) on the interest determination date
("Interest Determination Date") in question plus or minus (as indicated in the
applicable Pricing Supplement) the Margin (if any), all as determined by the
Calculation Agent. If five or more such offered quotations are available on the
Relevant Screen Page, the highest (or, if there is more than one such
highest quotation, one only of such quotations) and the lowest (or, if there is
more than one such lowest quotation, one only of such quotations) shall be
disregarded by the Calculation Agent for the purpose of determining the
arithmetic mean (rounded as provided above) of such offered quotations.
(2) If the Relevant Screen Page is not available or if, in the case of
sub-clause (b)(1)(A) above, no such offered quotation appears or, in the case of
sub-clause (b)(1)(B) above, fewer than three such offered quotations appear,
in each case as at the time specified in the preceding paragraph, the
Calculation Agent shall at its sole discretion request the principal London
office of each of the Reference Banks (defined below) to provide the Calculation
Agent with its offered quotation (expressed as a percentage rate per annum) for
deposits in the Specified Currency for the relevant Interest Period to leading
banks in the London inter-bank market at approximately 11:00 a.m. (London time)
on the Interest Determination Date in question. If two or more of the Reference
Banks provide the Calculation Agent with such offered quotations, the Rate of
Interest for such Interest Period shall be the arithmetic mean (rounded if
necessary to the fifth decimal place with 0.000005 being rounded upwards) of
such offered quotations plus or minus (as appropriate) the Margin (if any), all
as determined by the Calculation Agent.
(3) If on any Interest Determination Date one only or none of the
Reference Banks provides the Calculation Agent with such offered quotations as
provided in the preceding paragraph, the Rate of Interest for the relevant
Interest Period shall be the rate per annum which the Calculation Agent
determines as being the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Calculation Agent by the Reference
Banks or any two or more of them, at which such banks were offered, at
approximately 11:00 a.m. (London time) on the relevant Interest Determination
Date, deposits in the Specified Currency for the relevant Interest Period by
leading banks in the London inter-bank market plus or minus (as appropriate) the
Margin (if any). If fewer than two of the Reference Banks provide the
Calculation Agent with such offered quotations, the Rate of Interest shall be
the offered quotation for deposits in the Specified Currency for the relevant
Interest Period, or the arithmetic mean (rounded as provided above) of the
offered quotations for deposits in the Specified Currency for the relevant
Interest Period, at which, at approximately 11:00 a.m. (London time) on the
relevant Interest Determination Date, any one or more banks informs the
Calculation Agent it is quoting to leading banks in the London inter-bank
market plus or minus (as appropriate) the Margin (if any), provided that, if the
Rate of Interest cannot be determined in accordance with the foregoing
provisions of this paragraph, the Rate of Interest shall be determined as at the
last preceding Interest Determination Date (though substituting, where a
different Margin is to be applied to the relevant Interest Period from that
which applied to the last preceding Interest Period, the Margin relating to the
relevant Interest Period, in place of the Margin relating to that last preceding
Interest Period).
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(4) If the Reference Rate from time to time in respect of Floating Rate
Notes is specified in the applicable Pricing Supplement as being other than the
London inter-bank offered rate, the Rate of Interest in respect of such Notes
will be determined as provided in the applicable Pricing Supplement.
In this Clause 8, the expresssion "Reference Banks" means, in the case of
sub-clause (b)(1)(A) above, those banks whose offered rates were used to
determine such quotation when such quotation last appeared on the Relevant
Screen Page and in the case of sub-clause (b)(1)(B) above, those banks whose
offered quotations last appeared on the Relevant Screen Page when no fewer than
three such offered quotations appeared.
9. Notice of any Withholding or Deduction
If the Corporation is, in respect of any payment, compelled to withhold or
deduct any amount for or on account of taxes, duties, assessments or
governmental charges as specifically contemplated under the Terms and
Conditions, the Corporation shall give notice thereof to the Agent as soon as it
becomes aware of the requirement to make such withholding or deduction and shall
give to the Agent such information as it shall require to enable it to comply
with such requirement.
10. Duties of the Agent in Connection with Early Redemption
(1) If the Corporation decides to redeem any outstanding Notes (in whole
or in part) for the time being outstanding prior to their Maturity Date or the
Interest Payment Date falling in the Redemption Month (as the case may be) in
accordance with the Terms and Conditions, the Corporation shall give notice of
such decision to the Agent not less than seven London Business Days before the
date on which the Corporation will give notice to the Noteholders in
accordance with the Terms and Conditions of such redemption in order to enable
the Agent to undertake its obligations herein and in the Terms and Conditions.
(2) If only some of the Notes of like tenor and of the same Series are
to be redeemed on such date, the Agent shall make the required drawing in
accordance with the Terms and Conditions but shall give the Corporation
reasonable notice of the time and place proposed for such drawing. Where partial
redemptions are to be effected when there are Definitive Notes outstanding, the
Issuing and Principal Paying Agent will select by lot the Notes to be redeemed
from the outstanding Notes in compliance with all applicable laws and stock
exchange requirements and deemed by the Agent to be appropriate and fair; and
where partial redemptions are to be effected when there are no Definitive Notes
outstanding, the rights of Noteholders will be governed by the standard
provisions of Euroclear and Cedel. Notice of any partial redemption and, when
there are Definitive Notes outstanding, of the serial numbers of the Notes so
drawn, will be given by the Agent to the Noteholders in accordance with the
terms of the Notes and this Agreement.
(3) The Agent shall publish the notice on behalf of and at the expense
of the Corporation required in connection with any such redemption and shall at
the same time also publish a separate list of the serial numbers of any Notes
previously drawn and not presented for redemption. Such notice shall specify
the date fixed for redemption, the redemption amount, the manner in which
redemption will be effected and, in the case of a partial redemption, the serial
numbers of the Notes to be redeemed. Such notice will be published in
accordance with the Terms and Conditions. The Agent will also notify the other
Paying Agent of any date fixed for redemption of any Notes.
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(4) Immediately prior to the date on which any notice of redemption is
to be given to the Noteholders, the Corporation shall deliver to the Agent a
certificate stating that the Corporation is entitled to effect such redemption
and setting forth in reasonable detail a statement of facts showing that all
conditions precedent to such redemption have occurred or been satisfied and
shall comply with all notice requirements provided for in the Terms and
Conditions.
(5) Each Paying Agent will keep a stock of notices (each a "Put Notice")
in the form set out in Schedule 8 and will make such notices available on demand
to holders of Notes, the Terms and Conditions of which provide for redemption
at the option of Noteholders. Upon receipt of any Note deposited in the
exercise of such option in accordance with the Terms and Conditions, the Paying
Agent with which such Note is deposited shall hold such Note (together with any
Coupons, if any, relating to it and deposited with it) on behalf of the
depositing Noteholder (but shall not, save as provided below, release it) until
the due date for redemption of the relevant Note consequent upon the exercise
of such option, when, subject as provided below, it shall present such Note
(and any such Coupons, if any) to itself for payment of the amount due thereon
together with any interest due on such date in accordance with the Terms and
Conditions and shall pay such moneys in accordance with the directions of the
Noteholder contained in the Put Notice. If, prior to such due date for its
redemption, such Note becomes immediately due and payable or if upon due
presentation payment of such redemption moneys is improperly withheld or
refused, the Paying Agent concerned shall post such Note (together with any
such Coupons, if any) by uninsured post to, and at the risk of, the relevant
Noteholder unless the Noteholder has otherwise requested and paid the costs of
such insurance to the relevant Paying Agent at the time of depositing the Notes
at such address as may have been given by the Noteholder in the Put Notice. At
the end of each period for the exercise of such option, each Paying Agent shall
promptly notify the Agent of the principal amount of the Notes in respect of
which such option has been exercised with it together with their serial numbers
and the Agent shall promptly notify such details to the Corporation.
11. Receipt and Publication of Notices; Receipt of Certificates
(1) Upon the receipt by the Agent of a demand or notice from any
Noteholder in accordance with the Terms and Conditions the Agent shall forward
a copy thereof to the Corporation.
(2) On behalf of and at the request and expense of the Corporation, the
Agent shall cause to the published all notices required to be given by the
Corporation to the Noteholders in accordance with the Terms and Conditions.
(3) The Agent shall have no responsibility to obtain the certificate of
the Corporation delivered by the Corporation to the Agent pursuant to Condition
9 if such a certificate is required to be issued, nor shall the Agent have any
responsibility to notify the Corporation that the Agent has not obtained such a
certificate from the Corporation if such a certificate is required to be issued.
12. Cancellation of Notes, Receipts, Coupons and Talons
(1) All Notes which are redeemed, all Receipts or Coupons which are paid
and all Talons which are exchanged shall be delivered outside the United States
to the Agent, and shall be canceled by the Agent. In addition, all Notes which
are purchased by or on behalf of the Corporation or any of its subsidiaries and
are surrendered to the Agent for cancellation, together (in the case of Notes in
definitive form) with all unmatured Receipts, Coupons or Talons (if any)
attached thereto or surrendered therewith, shall be canceled by the Agent.
(2) The Corporation shall have the right to request that the Agent
provide, without limitation, the following information:
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(a) the aggregate principal amount of Notes which have been
redeemed and the aggregate amount paid in respect thereof;
(b) the number of Notes canceled together (in the case of
Definitive Notes, if any) with details of all unmatured Receipts, Coupons
or Talons (if any) attached thereto or delivered therewith;
(c) the aggregate amount paid in respect of interest on the
Notes;
(d) the total number by maturity date of Receipts, Coupons and
Talons so canceled; and
(e) (in the case of Definitive Notes, if any) the serial numbers
of such Notes,
shall be given to the Corporation by the Agent as soon as reasonably practicable
and in any event within three months after the date of such repayment or, as the
case may be, payment or exchange.
(3) The Agent shall destroy all canceled Notes, Receipts, Coupons and
Talons.
(4) The Agent shall keep a full and complete record of all Notes,
Receipts, Coupons and Talons (other than serial numbers of Coupons, except those
which have been replaced pursuant to Condition 10) and of all replacement Notes,
Receipts, Coupons or Talons issued in substitution for mutilated, defaced,
destroyed,lost or stolen Notes, Receipts, Coupons or Talons. The Agent shall at
all reasonable times make such record available to the Corporation and any
persons authorized by it for inspection and for the taking of copies thereof or
extracts therefrom.
(5) All records and certificates made or given pursuant to this Clause
12 and Clause 13 shall make a distinction between Notes, Receipts, Coupons and
Talons of each Series.
13. Issue of Replacement Notes, Receipts, Coupons and Talons
(1) The Corporation will cause a sufficient quantity of additional forms
of Notes, Receipts, Coupons and Talons to be available, upon request to the
Agent in Luxembourg (in such capacity, the "Replacement Agent") at is specified
office for the purpose of issuing replacement Notes, Receipts, Coupons and
Talons as provided below.
(2) The Replacement Agent will, subject to and in accordance with the
Terms and Conditions and the following provisions of this Clause 13,
authenticate and cause to be delivered any replacement Notes, Receipts, Coupons
and Talons which the Corporation may determine to issue in place of Notes,
Receipts, Coupons and Talons which have been lost, stolen, mutilated, defaced or
destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent
shall ensure that (unless otherwise covered by such indemnity as the Corporation
may reasonably require) any replacement Note will only have attached to it
Receipts, Coupons and Talons corresponding to those (if any) attached to the
mutilated or defaced Note which is presented for replacement.
(4) The Replacement Agent shall not issue any replacement Note, Receipt,
Coupon or Talon unless and until the applicant therefor shall have:
(a) paid such reasonable costs and expenses as may be incurred in
connection therewith, including any tax or other governmental charge that
may be imposed in relation thereto;
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(b) furnished it with such evidence and indemnity as the
Corporation may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt, Coupon
or Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced Notes,
Receipts, Coupons and Talons in respect of which replacement Notes, Receipts,
Coupons and Talons have been issued pursuant to this Clause 13 and shall furnish
the Corporation with a certificate stating the serial numbers of the Notes,
Receipts, Coupons and Talons so canceled and, unless otherwise instructed by the
Corporation in writing, shall destroy such canceled Notes, Receipts, Coupons and
Talons and furnish the Corporation with a destruction certificate stating the
serial number of the Notes (in the case of Definitive Notes) and the number by
maturity date of Receipts, Coupons and Talons so destroyed.
(6) The Replacement Agent shall, on issuing any replacement Note,
Receipt, Coupon or Talon, forthwith inform the Corporation, the Agent and the
other Paying Agents of the serial number of such replacement Note, Receipt,
Coupon or Talon issued and (if known) of the serial number of the Note, Receipt,
Coupon or Talon in place of which such replacement Note, Receipt, Coupon or
Talon has been issued. Whenever replacement Receipts, Coupons or Talons are
issued pursuant to the provisions of this Clause 13, the Replacement Agent shall
also notify the Agent and the other Paying Agents of the maturity dates of the
lost, stolen, mutilated, defaced or destroyed Receipts, Coupons or Talons and of
the replacement Receipts, Coupons or Talons issued.
(7) The Agent shall keep a full and complete record of all replacement
Notes, Receipts, Coupons and Talons issued and shall make such record available
at all reasonable times to the Corporation and any persons authorized by it for
inspection and for the taking of copies thereof or extracts therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a replacement
Note, Receipt, Coupon or Talon has been issued and in respect of which the
serial number is known is presented to the Agent or any of the Paying Agents
for payment, the Agent or, as the case may be, the relevant Paying Agent shall
immediately send notice thereof to the Corporation and the other Paying Agents
and shall not make payment in respect thereto, until instructed by the
Corporation.
14. Copies of Documents Available for Inspection
The Agent and the Paying Agent shall hold available for inspection copies
of:
(i) the organizational documents of the Corporation;
(ii) the latest available audited consolidated financial
statements of NationsBank Corporation and its consolidated subsidiaries
beginning with such financial statements for the fiscal years ended
December 31, 1993 and December 31, 1994 and the latest available
consolidated unaudited interim financial statements of NationsBank
Corporation and its consolidated subsidiaries, beginning with the
statements for the quarter ended June 30, 1995;
(iii) the Program Agreement and this Agreement;
(iv) the Offering Circular; and
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(v) any future offering circulars, information memoranda and
supplements (except that a Pricing Supplement relating to any unlisted Note
will only be available for inspection by a holder of such Note and such
holder must produce evidence satisfactory to the Paying Agent as to
ownership) to the Offering Circular and any other documents incorporated
therein by reference and in the case of a syndicated issue of listed Notes,
the syndication agreement (or equivalent documents).
For this purpose, the Corporation shall furnish the Agent and the Paying
Agents with sufficient copies of each of such documents.
15. Meetings of Noteholders
(1) The provisions of Schedule 7 hereto shall apply to meetings of the
Noteholders and shall have effect in the same manner as if set out in this
Agreement.
(2) Without prejudice to sub-clause (1), each of the Agent and the
Paying Agents on the request of any Noteholder shall issue voting certificates
and block voting instructions in accordance with Schedule 7 and shall forthwith
give notice to the Corporation in writing of any revocation or amendment of a
block voting instruction. Each of the Agent and the Paying Agents will keep a
full and complete record of all voting certificates and block voting
instructions issued by it and will, not less than 24 hours before the time
appointed for holding a meeting or adjourned meeting, deposit as such place as
the Agent shall designate or approve, full particulars of all voting
certificates and block voting instructions issued by it in respect of such
meeting or adjourned meeting.
16. Repayment by the Agent
Upon the Corporation being discharged from its obligation to make payments
in respect of any Notes pursuant to the relevant Terms and Conditions, and
provided that there is no outstanding, bona fide and proper claim in respect of
any such payments, the Agent shall forthwith on written demand pay to the
Corporation sums equivalent to any amounts paid to it by the Corporation for the
purposes of such payments.
17. Conditions of Appointment
(1) The Agent shall be entitled to deal with money paid to it by the
Corporation for the purpose of this Agreement in the same manner as other money
paid to a banker by its customers except:
(a) that it shall not exercise any right of set-off, lien or
similar claim in respect thereof;
(b) as provided in sub-clause (2) below; and
(c) that it shall not be liable to account to the Corporation for
any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent and
the Paying Agents shall act solely as agents of the Corporation and will not
thereby assume any obligations towards or relationship of agency or trust for or
with any of the owners or holders of the Notes, Receipts, Coupons or Talons.
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(3) The Agent and the Paying Agents hereby undertake to the Corporation
to perform such obligations and duties, and shall be obliged to perform such
duties and only such duties as are herein, in the Terms and Conditions and in
the Procedures Memorandum specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Notes against the Agent and
the Paying Agents, other than the duty to act honestly and in good faith.
(4) The Agent may consult with legal and other professional advisers and
the opinion of such advisers shall be full and complete protection in respect of
any action taken, omitted or suffered hereunder in good faith and in accordance
with the opinion of such advisers.
(5) Each of the Agent and the Paying Agents shall be protected and shall
incur no liability for or in respect of any action taken, omitted or suffered in
reliance upon any instruction, request or order from the Corporation or any
notice, resolution, direction, consent, certificate, affidavit, statement,
cable, telex or other paper or document which it reasonably believes to be
genuine and to have been delivered, signed or sent by the proper party or
parties or upon written instructions from the Corporation.
(6) Any of the Agent and the Paying Agents and their officers, directors
and employees may become the owner of, or acquire any interest in any Notes,
Receipts, Coupons or Talons with the same rights that it or he would have if the
Agent or the relevant Paying Agent, as the case may be, concerned were not
appointed hereunder, and may engage or be interested in any financial or other
transactions with the Corporation and may act on, or as depositary, trustee or
agent for, any committee or body of Noteholders or Couponholders or in
connection with any other obligations of the Corporation as freely as if the
Agent or the relevant Paying Agent, as the case may be, were not appointed
hereunder.
(7) The Corporation shall provide the Agent with a certified copy of the
list of persons authorized to execute documents and take action on its behalf in
connection with this Agreement and shall notify the Agent immediately in writing
if any of such persons ceases to be so authorized or if any additional person
becomes so authorized together, in the case of an additional authorized person,
with evidence satisfactory to the Agent that such person has been so authorized,
provided, however, that the Agent shall not incur any liability for any losses,
claims or damages resulting from the Corporation's failure to provide such
notification to the Agent.
18. Communication Between the Parties
A copy of all communications relating to the subject matter of this
Agreement between the Corporation and the Noteholders, Receiptholders or
Couponholders and any of the Paying Agents shall be sent to the Agent by the
relevant Paying Agent.
19. Changes in Agent and Paying Agents
(1) The Corporation agrees that, for so long as any Note is outstanding,
or until moneys for the payment of all amounts in respect of all outstanding
Notes have been made available to the Agent or have been returned to the
Corporation as provided herein:
(a) so long as any Notes are listed on any Stock Exchange, there
will at all times be a Paying Agent with a specified office in such place
as may be required by the rules and regulations of the relevant Stock
Exchange; and
(b) there will at all times be a Paying Agent with a specified
office in a city in continental Europe; and
(c) there will at all times be an Agent.
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In addition, the Corporation shall appoint a Paying Agent having a
specified office in New York City in the circumstances described in the final
paragraph of Condition 5(b). Any variation, termination, appointment or change
shall only take effect (other than in the case of insolvency (as provided in
sub-clause (5)), when it shall be of immediate effect) after not less than 30
nor more than 45 days' prior notice thereof shall have been given to the
Noteholders in accordance with the Terms and Conditions.
(2) The Agent may (subject as provided in sub-clause (4)) at any time
resign as Agent by giving at least 90 days' written notice to the Corporation of
such intention on its part, specifying the date on which its desired resignation
shall become effective, provided that such date shall never be less than three
months after the receipt of such notice by the Corporation unless the
Corporation agrees to accept less notice.
(3) The Agent may (subject as provided in sub-clause (4)) be removed at
any time on at least 45 days' notice by the filing with it of an instrument in
writing signed on behalf of the Corporation specifying such removal and the date
when it shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-clause (3)
shall only take effect upon the appointment by the Corporation as hereinafter
provided, of a successor Agent and (other than in cases of insolvency of the
Agent) on the expiry of the notice to be given under Clause 21. The Corporation
agrees with the Agent that if, by the day falling ten days before the expiry of
any notice under sub-clause (2), the Corporation has not appointed a successor
Agent, then the Agent shall be entitled, on behalf of the Corporation, to
appoint as a successor Agent in its place a reputable financial institution of
good standing as it may reasonably determine to be capable of performing the
duties of the Agent hereunder.
(5) In case at any time the Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a voluntary
petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of an administrator, liquidator or administrative
or other receiver of all or a substantial part of its property, or admits in
writing its inability to pay or meet its debts as they mature or suspends
payment thereof, or if any order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
insolvency law or if a receiver of it or of all or a substantial part of its
property is appointed or any officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Agent, which shall be a reputable financial institution
of good standing, may be appointed by the Corporation by an instrument in
writing filed with the successor Agent. Upon the appointment as aforesaid of a
successor Agent and acceptance by the latter of such appointment and (other than
in case of insolvency of the Agent) upon expiry of the notice to be given under
Clause 21 the Agent so superseded shall cease to be the Agent hereunder.
(6) Subject to sub-clause (1):
(A) the Corporation may, after prior consultation (other than in
the case of insolvency of any Paying Agent) with the Agent, terminate the
appointment of any of the Paying Agents at any time; and/or
(B) the Corporation may in respect of the Program or the
Corporation may in respect of any Series of Notes, if so required by the
relevant Stock Exchange or regulatory body, appoint one or more further
Paying Agents by giving to the Agent, and to the relevant Paying Agent, at
least 45 days' notice in writing to that effect.
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(7) Subject to sub-clause (1), all or any of the Paying Agents may
resign their respective appointments hereunder at any time by giving the
Corporation and the Agent at least 45 days' written notice to that effect.
(8) Upon its resignation or removal becoming effective the Agent or the
relevant Paying Agent:
(a) shall, in the case of the Agent, forthwith transfer all
moneys held by it hereunder and the records referred to in Clause 12(4) to
the successor Agent hereunder; and
(b) shall be entitled to the payment by the Corporation of its
commissions, fees and expenses for the services theretofore rendered
hereunder in accordance with the terms of Clause 25.
(9) Upon its appointment becoming effective, a successor Agent and any
new Paying Agent shall without further act, deed or conveyance, become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor or, as the case may be, a Paying Agent with like,
effect as if originally named as Agent or (as the case may be) a Paying Agent
hereunder.
20. Merger and Consolidation
Any corporation into which the Agent or any Paying Agent may be merged or
converted, or any corporation with which the Agent or any of the Paying Agents
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Agent or any of the Paying Agents shall be a party,
or any corporation to which the Agent or any of the Paying Agents shall sell or
otherwise transfer all or substantially all the assets of the Agent or any
Paying Agent shall, on the date when such merger, conversion, consolidation or
transfer becomes effective and to the extent permitted by any applicable laws,
become the successor Agent or, as the case may be, Paying Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto, unless otherwise required by the Corporation, and
after the said effective date all references in this Agreement to the Agent or,
as the case may be, such Paying Agent shall be deemed to be references to such
corporation. Written notice of any such merger, conversion, consolidation or
transfer shall forthwith be given to the Corporation by the relevant Agent or
Paying Agent.
21. Notification of Changes to Paying Agents
Following receipt of notice or resignation from the Agent or any Paying
Agent and forthwith upon appointing a successor Agent or, as the case may be,
further or other Paying Agents or on giving notice to terminate the appointment
of any Agent or, as the case may be, Paying Agent, the Agent (on behalf of and
at the expense of the Corporation) shall give or cause to be given not more than
60 days' nor less than 30 days' notice thereof to the Noteholders in accordance
with the Terms and Conditions.
22. Change of Specified Office
If the Agent or any Paying Agent determines to change its specified office
it shall give to the Corporation and (if applicable) the Agent written notice of
such determination giving the address of the new specified office which shall be
in the same city and stating the date on which such change is to take effect,
which shall not be less than 45 days thereafter. The Agent (on behalf and at the
expense of the Corporation) shall within 15 days of receipt of such notice
(unless the appointment of the Agent, or the relevant Paying Agent, as the case
may be, is to terminate pursuant to Clause 19 on or prior to the date of
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such change) give or cause to be given not more than 45 days' nor less than 30
days' notice thereof to the Noteholders in accordance with the Terms and
Conditions.
23. Notices
All notices hereunder shall be deemed to have been given when deposited in
the mail as first class mail, registered or certified, return receipt requested,
postage prepaid, addressed to any party hereto as follows:
Address
The Corporation: NationsBank Corporation
NationsBank Corporate Center
NC 1007-23-1
Charlotte, North Carolina 28255-0065
Attn: John E. Mack
Treasurer
Telecopy: (704) 386-0270
with a copy to:
NationsBank Corporation
NationsBank Corporate Center
Legal Department
NC 1007-20-1
Charlotte, North Carolina 28255-0065
Attn: Paul J. Polking, Esq.
General Counsel
Telecopy: (704) 386-6453
The Agent:
The Chase Manhattan Bank, N.A.
Woolgate House
Coleman Street
London EC2P 2HD
United Kingdom
Attn: Manager, Corporate Trust
Operations
Telecopy: 71-1202-347945
The Paying Agent:
Chase Manhattan Bank Luxembourg S.A.
5 rue Plaetis
L-2338 Luxembourg - Grund.
Manager, Corporate Trust Operations
Telecopy: 552-462685-380
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or at any other address of which any of the foregoing shall have notified the
others in writing.
(a) if delivered in person to the relevant address specified in
the signature pages hereof and if so delivered, shall be deemed to have
been delivered at the time of receipt; or
(b) if sent by facsimile or telex to the relevant number
specified on the signature pages hereof and, if so sent, shall be deemed to
have been delivered immediately after transmission provided such
transmission is confirmed by the answerback of the recipient (in the case
of telex) or when an acknowledgement of receipt is received (in the case of
facsimile).
Where a communication is received after business hours it shall be deemed
to be received and become effective on the next business day. Every
communication shall be irrevocable save in respect of any manifest error
therein.
24. Taxes and Stamp Duties
The Corporation agrees to pay any and all stamp and other documentary taxes
or duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
25. Commissions, Fees and Expenses
(A) The Corporation undertakes to pay in respect of the services of the
Agent and the Paying Agents under this Agreement such fees and expenses as may
be agreed between them from time to time, the initial such fees being set out in
a letter of even date herewith from the Agent to, and countersigned by, the
Corporation.
(B) The Corporation will promptly pay on demand all out-of-pocket
expenses (including legal, advertising, facsimile, telex and postage expenses)
properly incurred by the Agent and the Paying Agents in connection with their
services hereunder, including without limitation the expenses contemplated in
Clause 24.
26. Indemnity
(A) The Corporation undertakes to indemnify and hold harmless each of
the Agent and the Paying Agents against all losses, liabilities, costs
(including, without limitation, legal fees and expenses), expenses, claims,
actions or demands which the Agent or any Paying Agent, as the case may be, may
reasonably incur or which may be made against the Agent or any Paying Agent, as
a result of or in connection with the appointment or the exercise of or
performance of the powers, discretions, authorities and duties of the Agent or
any Paying Agent under this Agreement except such as may result from its own
gross negligence, bad faith or failure to comply with its obligations hereunder
or that of its officers, employees or agents.
(B) Each of the Agent and the Paying Agents shall severally indemnify
and hold harmless the Corporation against any loss, liability, costs (including,
without limitation, legal fees and expenses), expense, claim, action or demand
which it may reasonably incur or which may be made against it as a result of
such Agent's or Paying Agent's own negligence, bad faith or material failure to
comply with its obligations under this Agreement or that of its officers,
employees or agents.
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(C) If, under any applicable law and whether pursuant to a judgment
being made or registered or in the liquidation, insolvency or analogous process
of any party hereto or for any other reason, any payment under or in connection
with this Agreement is made or fails to be satisfied in a currency (the "Other
Currency") other than that in which the relevant payment is expressed to be due
(the "Required Currency") under this Agreement, then, to the extent that the
payment (when converted into the Required Currency at the rate of exchange on
the date of payment or, if it is not practicable for the payee to purchase the
Required Currency with the Other Currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so or, in the case
of a liquidation, insolvency or analogous process, at the rate of exchange on
the latest date permitted by applicable law for the determination of liabilities
in such liquidation, insolvency or analogous process) actually received by the
payee falls short of the amount due under the terms of this Agreement, the payor
shall, as a separate and independent obligation, indemnify and hold harmless the
payee against the amount of such shortfall. For the purpose of this Clause 27,
"rate of exchange" means the rate at which the payee is able on the relevant
date to purchase the Required Currency with the Other Currency and shall take
into account any premium and other costs of exchange.
27. Reporting
(A) The Agent shall upon receipt of a written request therefor from the
Corporation and after the payment of any further remuneration agreed between the
Corporation and the Agent (on behalf of the Corporation and on the basis of the
information and documentation the Agent had in its possession) use all
reasonable efforts to submit such reports or information as may be required from
time to time by any applicable law, regulation or guideline promulgated by (i)
any relevant United States governmental regulatory authority in respect of the
issue and purchase of Notes or (ii) any other relevant governmental regulatory
authority in respect of the issue and purchase of Notes denominated in the
applicable currency of such governmental regulatory authority.
(B) The Agent will notify the MoF of such details relating to Yen Notes
and provide such other information about the Program to the MoF as may be
required.
(C) The Agent will notify the German Bundesbank at the end of each month
about the amounts, dates of issue and other terms of all DM-denominated Notes
issued during the month in question and provide such other information about the
Program to the German Bundesbank as may be required.
28. Governing Law
(A) This Agreement, the Notes, and any Receipts, Coupons or Talons
appertaining thereto shall be governed by and construed in accordance with the
laws of the State of New York, United States of America, without regard to
principles of conflicts of laws.
(B) The Corporation and the Agent each hereby irrevocably submits to the
non-exclusive jurisdiction of any United States Federal court sitting in New
York City, the Borough of Manhattan over any suit, action or proceeding arising
out of or related to this Agreement, any Note, Receipt, Coupon or Talon, as the
case may be (together, the "Proceedings"). The Corporation and the Agent each
irrevocably waives, to the fullest extent permitted by law, any objection which
it may have to the laying of the venue of the Proceedings brought in such a
court and any claim that the Proceedings have been brought in an inconvenient
forum. The Corporation and the Agent each agrees that final judgment in the
Proceedings brought in such a court shall be conclusive and binding upon the
Corporation or the Agent, as the case may be, and may be enforced in any court
of the jurisdiction to which the Corporation or the Agent is subject by a suit
upon such judgment, provided that the service of process is effected upon
-22-
<PAGE>
the Corporation and the Agent in the manner specified in subsection (C) below or
as otherwise permitted by law.
(C) As long as any of the Notes, Receipts, Coupons or Talons remains
outstanding, the Corporation shall at all times either maintain an office or
have an authorized agent in New York City upon whom process may be served in the
Proceedings. Service of process upon either it at its offices or upon such agent
with written notice of such service mailed or delivered to the Corporation
shall, to the fullest extent permitted by law, be deemed in every respect
effective service of process upon the Corporation in the Proceedings. The
Corporation hereby appoints CT Corporation System as its agent for such
purposes, and covenants and agrees that service of process in the Proceedings
may be made upon it at its office or at the specified offices of such agent (or
such other addresses or at the offices of any other authorized agents which the
Corporation may designate by written notice to the Agent) and prior to any
termination of such agencies for any reason, it will so appoint a successor
thereto as agent hereunder.
29. Amendments
Without the consent of the Noteholders, Receiptholders or Couponholders,
the Agent and the Corporation may agree to modifications of or amendments to
this Agreement, the Notes, the Receipts or the Coupons for any of the following
purposes:
(i) to evidence the succession of another corporation to the Corporation
and the assumption by any such successor of the covenants of the
Corporation in this Agreement, the Notes, Receipts or Coupons;
(ii) to add to the covenants of the Corporation for the benefit of the
Noteholders, the Receiptholders or the Couponholders, or to
surrender any right or power herein conferred upon the Corporation;
(iii) to relax or eliminate the restrictions on payment of principal and
interest in respect of the Notes, Receipts or Coupons in the United
States, provided that such payment is permitted by United States tax
laws and regulations then in effect and provided that no adverse tax
consequences would result to the Noteholders, the Receiptholders or
the Couponholders;
(iv) to cure any ambiguity, to correct or supplement any defective
provision herein or any provision which may be inconsistent with any
other provision herein;
(v) to make any other provisions with respect to matters or questions
arising under the Notes, the Receipts, the Coupons or this
Agreement, provided such action pursuant to this sub-clause (v)
shall not adversely affect the interests of the Noteholders, the
Receiptholders or the Couponholders; and
(vi) permit further issuances of Notes in accordance with the terms of
this Agreement and as further provided hereof.
Any such modification or amendment shall be binding on the Noteholders, the
Receiptholders and the Couponholders and any such modification or amendment
shall be notified to the Noteholders, the Receiptholders or the Couponholders in
accordance with Condition 13 as soon as practicable thereafter.
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<PAGE>
30. Descriptive Headings
The descriptive headings in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
31. Counterparts
This Agreement may be executed in any number of couterparts, all of which
shall constitute one and the same instrument. Any party may enter into this
Agreement by signing such a counterpart.
-24-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective corporate names by their respective officers
thereunder duly authorized as of the date and year first above written.
NATIONSBANK CORPORATION
as Issuer
By /s/ John E. Mack
Name: JOHN E. MACK
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, N.A.,
LONDON BRANCH
as Agent and
Principal Paying Agent
By /s/ S. Kaufman
Name: S. Kaufman
Title: senior Vice President
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /s/ S. Kaufman
Name: S. Kaufman
Title: Authorized Signatory
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>5
<DESCRIPTION>EXHIBIT 4(N)
<TEXT>
<PAGE>
ISSUING AND PAYING AGENCY AGREEMENT
BETWEEN
NATIONSBANK, N.A. (CAROLINAS),
NATIONSBANK OF TEXAS, N.A.
AND
NATIONSBANK OF GEORGIA, N.A.
AS ISSUERS
AND
BANKERS TRUST COMPANY,
AS ISSUING AND PAYING AGENT,
DATED AS OF APRIL 10, 1995
-------------------
SHORT-TERM AND MEDIUM-TERM NOTES
DUE FROM 30 DAYS TO 15 YEARS FROM DATE OF ISSUE
<PAGE>
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. Definition................................................................................. 1
SECTION 2. Appointment of Agents...................................................................... 9
(a) Issuing and Paying Agent................................................ 9
(b) Selling Agents......................................................... 10
(c) Registrar.............................................................. 10
(d) Transfer Agents........................................................ 10
(e) Calculation Agents...................................................... 10
SECTION 3. The Notes.................................................................................. 11
(a) Note Form; Signature.................................................... 11
(b) Denominations........................................................... 14
(c) Completion of Notes..................................................... 14
(d) Date.................................................................... 15
(e) Certificate of Authentication........................................... 15
(f) Original Issue Discount Note............................................ 15
(g) Custody of Notes........................................................ 15
(h) Certificated Notes...................................................... 15
SECTION 4. Authorized Representatives................................................................. 16
SECTION 5. Completion, Authentication and Delivery of
Notes........................................................................................ 16
SECTION 6. Procedure upon Sale of the Notes........................................................... 20
SECTION 7. Payment of Interest; Actions on Days Other
than Business Days........................................................................... 20
SECTION 8. Payment of Principal....................................................................... 22
SECTION 9. Designation of Accounts to Receive Pay-
ment......................................................................................... 22
SECTION 10. Information Regarding Amounts Due......................................................... 22
SECTION 11. Specified Currency Notes.................................................................. 23
SECTION 12. Deposit of Funds.......................................................................... 23
SECTION 13. Optional Redemption....................................................................... 23
(a) Optional Redemption..................................................... 23
(b) Optional Repayment...................................................... 24
i
<PAGE>
Page
(c) Optional Extension of Maturity.......................................... 24
(d) Optional Renewal........................................................ 26
SECTION 14. Events of Default......................................................................... 27
SECTION 15. Registration; Transfer.................................................................... 28
SECTION 16. Persons Deemed Owners..................................................................... 30
SECTION 17. Mutilated, Lost, Stolen or Destroyed
Notes........................................................................................ 30
SECTION 18. Return of Unclaimed Funds................................................................. 31
SECTION 19. Amendment or Supplement................................................................... 31
SECTION 20. Resignation or Removal of Agents; Ap-
pointment of Successors to Agents............................................................ 33
(a) Resignation or Removal of Agent......................................... 33
(b) Appointment of Successor to Agent....................................... 34
(c) Successor of Agent...................................................... 35
(d) Merger, Etc. of Agent................................................... 35
(e) Change in Duties of an Agent............................................ 36
(f) Additional Agents....................................................... 36
SECTION 21. Reliance on Instructions.................................................................. 36
SECTION 22. Cancellation of Unissued Notes............................................................ 36
SECTION 23. Representation and Warranties of the
Issuers; Instructions by Certificate......................................................... 36
SECTION 24. Fees...................................................................................... 37
SECTION 25. Notices................................................................................... 37
SECTION 26. Information Furnished by the Issuing and
Paying Agent................................................................................. 38
SECTION 27. Liability................................................................................. 39
SECTION 28. Additional Responsibilities; Additional
Responsibilities............................................................................. 39
SECTION 29. Transfer of Notes and Moneys.............................................................. 39
ii
<PAGE>
Page
SECTION 30. Indemnity................................................................................. 41
SECTION 31. Limitation of Liability; Reliance on
Opinions and Certificates.................................................................... 41
SECTION 32. Benefit of Agreement...................................................................... 42
SECTION 33. Governing Law............................................................................. 42
SECTION 34. Headings and Table of Contents............................................................ 42
SECTION 35. Counterparts.............................................................................. 43
SECTION 35. Termination of Prior Issuing and Paying
Agent Agreements............................................................................. 43
EXHIBIT A - Forms of DTC Letters of Representations
EXHIBIT B - Administrative Procedures
EXHIBIT C - Form of Fixed Rate Note
EXHIBIT D - Form of Floating Rate Note
EXHIBIT E - Form of Legend for Original Issue Discount
Note
EXHIBIT F - The Issuers' Authorized Representatives
EXHIBIT G - Form of Issuing and Paying Agent's Officer's
Certificate Referencing Authorized Represen-
tatives
iii
<PAGE>
NATIONSBANK, N.A. (CAROLINAS)
NATIONSBANK OF TEXAS, N.A.
NATIONSBANK OF GEORGIA, N.A.
SHORT-TERM AND MEDIUM-TERM NOTES
ISSUING AND PAYING AGENCY AGREEMENT
ISSUING AND PAYING AGENCY AGREEMENT dated as of April 10,
1995, between NATIONSBANK, N.A. (CAROLINAS), NATIONSBANK OF TEXAS, N.A., and
NATIONSBANK OF GEORGIA, N.A., each a national banking association organized
under the laws of the United States, each as an Issuer, and BANKERS TRUST
COMPANY, a New York banking corporation, as Issuing and Paying Agent.
SECTION 1. Definitions. Except as otherwise expressly provided
or unless the context otherwise requires: (l) the words and phrases with initial
capitals used herein have the meanings specified in this Section; and (2) the
words "herein," "hereof" and "hereunder" and other words of similar impact refer
to this Issuing and Paying Agency Agreement as a whole and not to any particular
section or other subdivision. Capitalized terms used herein but not otherwise
defined herein shall have the same meaning and intention specified therefor in
the applicable Note.
ADDITIONAL RESPONSIBILITIES - Has the meaning given such term
in Section 28.
ADMINISTRATIVE PROCEDURES - The Administrative Procedures
applicable to the Notes, as set forth in Exhibit B hereto.
AGENT OR AGENTS - Any of the Issuing and Paying Agent, any
paying agent or the Registrar, as the context indicates.
AGREEMENT - This Issuing and Paying Agency Agreement,
including the exhibits hereto, as amended or supplemented from time to time.
AMORTIZING NOTE - Any Note the terms of which provide for the
payment of Principal thereof and interest thereon on each Interest Payment Date
and the Stated Maturity thereof.
<PAGE>
AUTHORIZED DENOMINATION - Has the meaning given such term in
Section 3(b).
AUTHORIZED REPRESENTATIVE - With respect to an Issuer, any
duly authorized representative of such Issuer as set forth in Exhibit F hereto,
and any other representative of such Issuer as to which such Issuer may
hereafter certify in writing to the Issuing and Paying Agent.
BUSINESS DAY - Unless otherwise specified in a Pricing
Supplement relating to a particular Note, with respect to any Note issued by an
Issuer, any day that is not a Saturday or Sunday and that is not a day on which
banking institutions in The City of New York, New York are generally authorized
or obligated by law to close (or, if the Issuing and Paying Agent is other than
Bankers Trust Company, the city in which such successor Issuing and Paying
Agent's principal office is located). With respect to LIBOR Notes, "Business
Day" means London Business Day. If a particular Note is denominated in or
indexed to a Specified Currency other than U.S. dollars or the European Currency
Unit ("ECU"), "Business Day" means any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The City of New York and the
principal financial center of the country issuing the Specified Currency are
generally authorized or obligated by law or regulation to close and is a day on
which banking institutions in such principal financial center are carrying out
transactions in such Specified Currency and, if such Note is denominated in or
indexed to ECU, each day which is not a day that banking institutions in the
country of Luxembourg are authorized or required by law or regulation to close
and which is an ECU clearing day, as determined by the ECU Banking Association
in Paris, France.
CALCULATION AGENT - With respect to Notes issued by an Issuer,
such person appointed by such Issuer to calculate the interest rates applicable
to Floating Rate Notes or certain other Notes, and for certain related matters,
as more fully described in Section 2(e).
CERTIFICATE OF AUTHENTICATION - Has the meaning given such
term in Section 3(e).
CERTIFICATED NOTES - Any Notes issued in fully registered,
certificated form.
2
<PAGE>
COMPONENTS - Has the meaning given such term in Section 11(d).
DEPOSITARY - With respect to Notes issued in the form of one
or more Global Notes, the Person designated as Depositary by the Issuer thereof
pursuant hereto, which Depositary at all times shall be a trust company validly
existing and in good standing (at the time of its appointment) under the laws of
the United States or any state thereof and shall be a clearing agency duly
registered under the Securities Exchange Act.
DISTRIBUTION AGREEMENT - The Distribution Agreement, dated
April 10, 1995, among the Issuers, NationsBanc Capital Markets, Inc., CS First
Boston Corporation, Lehman Brothers, Lehman Brothers Inc. (including its
affiliates Lehman Commercial Paper Inc. and Lehman Government Securities Inc.)
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
amended and supplemented from time to time.
DTC - The Depository Trust Company or its successors and
assigns.
EVENT OF DEFAULT - Has the meaning given such term in Section
14.
EXTENSION NOTICE - The notice to be provided to Holders of
Notes the Stated Maturity of which is extended by an Issuer as provided in
Section 13(c) hereof.
EXTENSION PERIOD(S) - The period or periods, by which an
Issuer may extend the Stated Maturity of Notes which provide for such extension,
as described more fully in Section 13(c) hereof.
FINAL MATURITY DATE - The latest date designated on the face
of a Note which provides for the maturity thereof.
FIXED RATE NOTES - Any Notes bearing interest at fixed rates
and substantially in the form of Exhibit C hereto.
FLOATING RATE NOTES - Any Notes bearing interest at a variable
rate or rates determined by reference to an interest rate formula, which may be
adjusted by adding or
3
<PAGE>
subtracting a number of basis points or "spread" specified by the Issuer on the
related Floating Rate Note as being applicable to such Floating Rate Note and/or
by multiplying a percentage or "spread multiplier" specified by the Issuer
thereof on the related Floating Rate Note as being applicable to such Floating
Rate Note and substantially in the form of Exhibit D.
GLOBAL NOTE - A Note, in the form provided by Section 3(a),
issued to the Depositary or its nominee, and registered in the Register in the
name of the Depositary or its nominee.
HOLDER - Means the person in whose name a Note is registered
in the Register.
INITIAL MATURITY DATE - Has the meaning given such term in
Section 13(d).
INITIAL REDEMPTION DATE - With respect to a Note that is
subject to an Optional Redemption, the date specified as the Initial Redemption
Date on such Note and after which, but prior to the Stated Maturity, an Optional
Redemption of such Note may occur as specified in such Note.
INITIAL RENEWAL DATE - Has the meaning given such term in
Section 13(d).
INTEREST PAYMENT DATE - A date for payment of interest on a
Note, as provided in the Note.
ISSUER - Each of NationsBank, N.A. (Carolinas), a national
banking association, and its successors and assigns, NationsBank of Texas, N.A.,
a national banking association, and its successors and assigns, and NationsBank
of Georgia, N.A., a national banking association, and its successors and
assigns. All such entities are collectively referred to herein as the "Issuers".
ISSUING AND PAYING AGENT - Bankers Trust Company, or any
successor Issuing and Paying Agent appointed in accordance with this Agreement
under Section 20 that has accepted such appointment hereunder.
LETTERS OF REPRESENTATIONS - The letters from the Issuing and
Paying Agent to be furnished to DTC in accor-
4
<PAGE>
dance with Section 2(a) hereof, substantially in the forms set forth in Exhibit
A hereto.
LONDON BUSINESS DAY - Any day on which dealings in deposits in
U.S. dollars are transacted in the London inter-bank market.
NEW MATURITY DATE - Has the meaning given such term in Section
13(d).
NEW YORK BUSINESS DAY - Any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
NOTE OR NOTES - Any of an Issuer's Short-Term Notes or
Medium-Term Notes issued, authenticated and delivered under this Agreement.
OFFERING CIRCULAR - The Offering Circular of the Issuers
relating to the Notes dated April 10, 1995, as the same may be amended or
supplemented from time to time.
OFFICER'S CERTIFICATE - With respect to an Issuer, a
certificate (i) signed by the Chairman of the Board, the President, or any
Executive Vice President or Senior Vice President of an Issuer or such other
persons as such Issuer designates in an Officer's Certificate signed by the
President or any Vice President, and (ii) delivered to the Issuing and Paying
Agent.
OPTIONAL REDEMPTION - A redemption of a Note on or after the
date designated on such Note as the Initial Redemption Date at the option of the
Issuer thereof as set forth in such Note at a Redemption Price as set forth in
such Note.
ORIGINAL ISSUE DATE - As to any Note, the date on which such
Note was issued and the purchase price therefore was paid by the related Holder.
ORIGINAL ISSUE DISCOUNT NOTE - Any Note issued at an issue
price representing more than a DE MINIMIS discount from the principal amount
payable at its Stated Maturity for federal income tax purposes.
5
<PAGE>
ORIGINAL STATED MATURITY - Has the meaning given such term in
Section 13(c).
OUTSTANDING - For purposes of the provisions of this Agreement
and the Notes, any Note authenticated and delivered pursuant to this Agreement
shall, as of any date of determination, be deemed to be "Outstanding," except:
(i) Notes theretofore cancelled or delivered to the Issuing and Paying Agent for
cancellation; (ii) Notes that have become due and payable on their Principal
Payment Date and with respect to which monies sufficient to pay the Principal or
Redemption Price thereof, as the case may be, and interest thereon shall have
been made available to the Issuing and Paying Agent; or (iii) Notes in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered pursuant to this Agreement.
PAYMENT DATE - A date for payment of Principal of and interest
on an Amortizing Note as provided in the Note.
PERSON - Any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency, instrumentality
or political subdivision thereof.
PREDECESSOR NOTES - With respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 17 or the terms of a Note in lieu of
or in exchange for a mutilated, lost, destroyed, or stolen Note shall be deemed
to evidence the same debt as the mutilated, lost, destroyed or stolen Note, and
any Note issued upon registration of transfer of or in exchange for any other
Note shall be deemed to evidence all or a portion of the same debt evidenced by
such other Note.
PREPAYMENT OPTION DATES - If specified on the applicable Note,
a date or dates for prepayment of a Note prior to the Stated Maturity thereof at
the option of the Holder.
PREPAYMENT OPTION PRICE - The amount prepayable to a Holder on
a Prepayment Option Date together with any accrued interest to the Prepayment
Option Date, as and if specified above on the applicable Note.
6
<PAGE>
PRICING SUPPLEMENT - A supplement to the Offering Circular for
a particular Note or Notes.
PRINCIPAL - The amount of a Note due and payable on the Stated
Maturity therefor or, in the case of an Amortizing Note, the "Amortized Face
Amount" (as specified in the Note).
PRINCIPAL OFFICE - Subject to the right of each to change its
office, by advance written notice to the Issuers, such term means, (1) for the
Issuing and Paying Agent, its principal corporate trust office at Four Albany
Street, 4th floor, New York, New York 10006, Attention: Corporate Trust and
Agency Group; and (2) for any successor or additional Agents, their offices
specified in writing to the Issuers and the Issuing and Paying Agent.
PRINCIPAL PAYMENT DATE - The date provided on the face of the
Note on which the Principal, or Redemption Price of the Note, as the case may
be, becomes due and payable.
REDEMPTION PRICE - With respect to any Note subject to an
Optional Redemption, the amount specified in such Note as payable, when such
Note is redeemed on or after the Initial Redemption Date, pursuant to the
related Note.
REGISTER - The register for the registration and transfer of
the Notes maintained by the Issuing and Paying Agent pursuant to Section 15
hereof.
REGISTRAR - Bankers Trust Company, or any successor or
successors as Registrar, appointed in accordance with Section 20 hereof, who
shall perform the duties provided under Section 2(c) hereof.
REGULAR RECORD DATE - With respect to any Note, unless
otherwise specified in such Note, the Regular Record Date with respect to any
Interest Payment Date or Payment Date shall be the date that is the fifteenth
calendar day (whether or not a Business Day) prior to the applicable Interest
Payment Date or Payment Date, as the case may be.
RENEWABLE NOTE - A Note the maturity of which may be renewed
at the option of the Holder in accordance with the terms thereof.
7
<PAGE>
RENEWAL DATE - Has the meaning given such term in Section
13(d).
SECURITIES EXCHANGE ACT - The Securities Exchange Act of 1934,
as amended.
SELLING AGENT - Any party, other than an Issuer,
to the Distribution Agreement, including any party added to
such agreement after its initial date of execution. The
initial Selling Agents are: NationsBanc Capital Markets,
Inc., CS First Boston Corporation, Lehman Brothers, Lehman
Brothers Inc. (including its affiliates Lehman Commercial
Paper Inc. and Lehman Government Securities Inc.) and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
SPECIAL ELECTION INTERVAL - A period during which, if so
specified on the applicable Renewable Note, on the Interest Payment Date
occurring in the last month of each such Special Election Interval after an
Initial Renewal Date, the term of the Note may be extended to the Interest
Payment Date occurring in the last month in a period equal to twice the Special
Election Interval after the applicable Renewal Date, if the Holder of such Note
elects to extend the term of the Note or any portion thereof as provided in such
Note.
SPECIAL ELECTION PERIOD - A period, if specified on the
applicable Note, during which the Holder of such Note may elect to renew the
term of the Note, or if provided in the applicable Note, any portion thereof, by
delivering a notice to such effect to the Paying Agent.
SPECIFIED CURRENCY - The currency in which such Note is
denominated if such currency is denominated in a composite currency, currency
unit or a currency other than U.S. dollars.
SPECIFIED CURRENCY NOTE - A Note, which pursuant to the terms
specified thereon, is denominated in a Specified Currency.
STATED MATURITY - As to any Note or any installment of
Principal thereof or interest thereon, the date specified therein as the fixed
date on which the Principal of such Note or such installment of Principal and
interest is due and payable.
8
<PAGE>
TRANSFER AGENT - With respect to any Note issued by an Issuer,
any Person appointed by such Issuer to exchange or transfer Notes issued by such
Issuer.
SECTION 2. Appointment of Agents.
(a) Issuing and Paying Agent. Each Issuer hereby
appoints Bankers Trust Company, as Issuing and Paying Agent of the
Issuers in respect to the Notes upon the terms and subject to the
conditions herein set forth, and Bankers Trust Company hereby accepts
such appointment. The Issuing and Paying Agent shall have the powers
and authority granted to and conferred upon it in the Notes and this
Agreement and such further powers and authority to act on behalf of
each Issuer as may be agreed upon by such Issuer and the Issuing and
Paying Agent from time to time. All of the terms and provisions with
respect to such powers and authority contained in the Notes are subject
to and governed by the terms and provisions hereof.
Each Issuer further appoints and authorizes Bankers
Trust Company, as Issuing and Paying Agent, to act as its Issuing and
Paying Agent in executing the Letters of Representations to be
delivered to the Depositary, in substantially the forms set forth in
Exhibit A hereto.
The Issuing and Paying Agent shall at all times be a
bank or trust company organized under the laws of the United States or
any jurisdiction in the United States and authorized and empowered
under such laws to fulfill and perform all the duties and obligations
of the Issuing and Paying Agent hereunder.
The Issuing and Paying Agent hereby represents that
it is a corporation meeting the foregoing requirements and that it
shall promptly notify each Issuer of any occurrence or event that
renders it unable to continue to make the aforesaid representation.
(b) Selling Agents. Each Issuer has ap-
pointed NationsBanc Capital Markets, Inc., Lehman
Brothers, Lehman Brothers Inc. (including its affili-
ates Lehman Commercial Paper Inc. and Lehman Government
Securities Inc.) and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as Selling
9
<PAGE>
Agents for the Notes by and under the terms of the Distribution
Agreement, under which the Issuers may, from time to time, appoint
other Selling Agents.
(c) Registrar. Each Issuer hereby appoints Bankers
Trust Company as Registrar of the Issuers in respect of the Notes upon
the terms and subject to the conditions herein set forth, and Bankers
Trust Company hereby accepts such appointment. The Registrar will keep
the Register and otherwise act as Registrar in accordance with the
terms of this Agreement.
The Registrar will keep a record of all Notes at its
Principal Office or at such other location as it may choose and as to
which it will give advance notice to the Issuer. The Registrar will
include in such record a notation as to whether such Notes have been
paid or cancelled or, in the case of mutilated, destroyed, stolen or
lost Notes, whether such Notes have been replaced. In the case of the
replacement of any of the Notes, the Registrar will keep a record of
the Notes so replaced and the Notes issued in replacement thereof.
(d) Transfer Agents. Each Issuer (at its sole cost
and expense) may appoint from time to time one or more Transfer Agents
for one or more of the Notes. The Issuer shall solicit written
acceptance of the appointment from any entity so appointed as Transfer
Agent. Such written acceptance shall be in a form satisfactory to the
Issuing and Paying Agent and state that by the Transfer Agent's
acceptance of such appointment, it agrees to act as a Transfer Agent
pursuant to the terms and conditions of this Agreement. Each Issuer
hereby appoints Bankers Trust Company as the initial Transfer Agent for
the Notes, and Bankers Trust Company hereby accepts such appointment.
(e) Calculation Agents. The Issuing and Paying Agent
is hereby designated as calculation agent (in such capacity, the
"Calculation Agent") for the purpose of calculating the rate of
interest on the Floating Rate Notes including the CD Rate, the
Commercial Paper Rate, the Federal Funds Rate, the Prime Rate, LIBOR,
the CMT Rate, the 11th District Cost of Funds Rate and the Treasury
Rate all in accordance with the terms of the Floating Rate Notes.
10
<PAGE>
The duties and responsibilities of the Calculation Agent shall
be as specified herein, in the Administrative Procedures attached as
Exhibit B hereto, and in the applicable Note. As promptly as
practicable after each Interest Determination Date for a Floating Rate
Note, the Calculation Agent will notify the Issuer thereof of the
interest rate which will become effective on the next interest Reset
Date (as defined in such Floating Rate Note). Upon the request of the
Holder of a Floating Rate Note, the Calculation Agent will provide to
such Holder the interest rate then in effect and, if determined, the
interest rate which will become effective on the next Interest Reset
Date with respect to such Floating Rate Note.
Each Issuer (at its sole cost and expense) may appoint from
time to time one or more Calculation Agents for one or more of the
Notes. The Issuer shall solicit written acceptance of the appointment
from any entity so appointed as Calculation Agent. Such written
acceptance shall be in a form satisfactory to the Issuing and Paying
Agent and state that by the Calculation Agent's acceptance of such
appointment, it agrees to act as a Calculation Agent pursuant to the
terms and conditions of this Agreement. Each Issuer hereby appoints
Bankers Trust Company as the initial Calculation Agent for the Notes,
and Bankers Trust Company hereby accepts such appointment.
SECTION 3. The Notes.
(a) Note Form; Signature. Except as otherwise
provided in Section 3(h) hereof, each Note issued by an Issuer with the
same original issue date and otherwise having identical terms shall be
represented by a single note certificate (each a "Global Note"). Fixed
Rate Notes will be substantially in the form of Exhibit C hereto and
Floating Rate Notes will be substantially in the form of Exhibit D
hereto, provided that any Specified Currency Notes will be
substantially in either such form with such changes as may be agreed
upon by the Issuer and the Issuing and Paying Agent as provided in
Section 11 hereof. The Notes may contain such insertions, omissions,
substitutions, and other variations as the Issuer determines to be
required or permitted by this Agreement and may have such letters,
numbers, or other marks of identification and such
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legend or legends or endorsements placed thereon as any officer of the
Issuer executing such Notes may determine to be necessary or
appropriate, as evidenced by such officer's execution of such Notes by
manual or facsimile signature, including, without limitation, any
legends or endorsements that may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of
any securities exchange on which the Notes may be listed or to conform
to general usage.
Any Global Note issued hereunder shall, in addition to the provisions
contained in Exhibits C or D, hereto, as the case may be, bear a legend in
substantially the following form:
"This Note is a Global Note within the meaning of the Issuing
and Paying Agency Agreement hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Note is exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Issuing and
Paying Agency Agreement 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."
Furthermore, each Global Note issued hereunder to DTC or its nominee
shall bear a legend in substantially the following form:
"Unless this Note is presented by an authorized representative
of The Depository Trust Company to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO. or
such other name as requested by an authorized representative
of The Depository Trust Company and any payment is made to
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the regis-
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tered owner hereof, CEDE & CO., has an interest herein."
Each Issuer will from time to time furnish the Issuing and
Paying Agent with an adequate supply of Certificated Notes, without coupons,
serially numbered, which will have the Principal amount, date of issue, Stated
Maturity, Initial Redemption Date, if any, rate of interest (in the case of
Fixed Rate Notes) or base rate, initial interest rate, spread and/or spread
multiplier, if any, interest reset dates, index maturity and maximum and minimum
interest rates, if any (in the case of Floating Rate Notes), and, in each case,
the name and address of the Holder, and other applicable terms which may be
specified with respect to such Notes in accordance with the Administrative
Procedures left blank.
Each Floating Rate Note will bear interest at a rate
determined by reference to a base rate, which may be adjusted by a spread or
multiplied by a spread multiplier. Each Floating Rate Note will designate an
applicable base rate. Such base rate shall be calculated by reference to an
interest rate formula described in such Note. The interest rates borne by any
particular Notes may vary as against the rates borne by any other Notes. Any
such variations in interest rates with respect to particular Notes shall not
affect the rates of interest borne by any other Notes issued hereunder.
Each Note will be signed manually or by facsimile by an
Authorized Representative included in Group I on Exhibit F hereto. The Notes
will have a Stated Maturity of not less than (30) thirty days from date of issue
and not more than (15) fifteen years from date of issue and will be issued in
the respective orders of the serial numbers imprinted thereon. The Issuing and
Paying Agent hereby agrees to hold such blank Notes in safekeeping in accordance
with its customary practices and procedures.
Notwithstanding the foregoing, any Global Note issued by an
Issuer shall be exchangeable pursuant to this Section for Notes registered in
the name of Persons other than the Depositary for such Note or its nominee only
if (i) such Depositary notifies the Issuing and Paying Agent that it is
unwilling or unable to continue as Depositary for such Global Note or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act
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and in either such case a successor Depositary is not appointed by the Issuers
within ninety (90) days, or (ii) the Issuer thereof executes and delivers to the
Issuing and Paying Agent a written notification that such Global Note shall be
so exchangeable or (iii) an Event of Default occurs with respect to such Global
Note. Any Global Note that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Notes registered in such names as such Depositary
shall direct. Notwithstanding any other provision in this Agreement, a Global
Note may not be transferred except as a whole by the Depositary with respect to
such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
The aggregate principal amount of Notes which may be issued
and Outstanding at any time may not exceed $9,000,000,000. Not more than
$9,000,000,000 aggregate principal amount of Notes with maturities ranging from
more than 270 days to 15 years may be issued. Notes having maturities ranging
from 30 days to 270 days may be issued from time to time and may be outstanding
at any one time in an aggregate maximum principal amount equal to $9,000,000,000
minus the principal amount of Notes having maturities of more than 270 days
which have been issued. Outstanding notes issued by any of the Issuers which
were issued pursuant to any of those certain individual Issuing and Paying Agent
Agreements with an April 30, 1993 Effective Date entered into between Bankers
Trust Company and (i) NationsBank of North Carolina, N.A., as Issuer, (ii)
NationsBank of Georgia, N.A., as Issuer and (iii) NationsBank of Texas, N.A., as
Issuer, shall be deemed to be Notes issued hereunder solely for the purposes of
calculating the principal amount of Notes which may be issued or outstanding
hereunder.
(b) Denominations. Unless otherwise indicated in the
applicable Notes and except as provided in Section 3(h) and to the
extent that an Issuer elects to issue Notes in definitive form, the
Notes shall be issuable only in book-entry form, without coupons, in
minimum denominations of $250,000 and integral multiples of $1,000 in
excess thereof.
(c) Completion of Notes. Upon receipt of
the information set forth in Section 5(a), the Issuing
and Paying Agent shall complete and authenticate each Note.
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(d) Date. The Issuing and Paying Agent will
date each Note the date of its authentication.
(e) Certificate of Authentication. Only Notes that
bear thereon a certificate of authentication substantially in a form
set forth below (a "Certificate of Authentication"), executed by the
Issuing and Paying Agent by its manual signature, will be valid:
Certificate of Authentication
This is one of the Notes referred to in the
within-mentioned Issuing and Paying Agency Agreement.
Dated:_____ BANKERS TRUST COMPANY
as Issuing and Paying Agent
By __________________________
Authorized Signatory
(f) Original Issue Discount Note. Each
Original Issue Discount Note shall contain on its face
a legend substantially in the form of Exhibit E hereto.
(g) Custody of Notes. The Issuing and Paying Agent
shall maintain in safe custody all blank Notes an Issuer delivers to it
and that it holds hereunder and shall complete and issue such Notes
only in accordance with the terms hereof.
(h) Certificated Notes. If at any time the Depositary
notifies an Issuer or the Issuing and Paying Agent that it is unwilling
or unable to continue to act as depositary for any of the Global Notes,
or if at any time such Depositary ceases to be a clearing agency
registered under the Securities Exchange Act and in either such case a
successor Depositary is not appointed by the Issuers within ninety (90)
days, the Issuers will execute and the Issuing and Paying Agent will,
upon the receipt of procedures for certificated securities in form and
substance satisfactory to the Issuers and the Issuing and Paying Agent
and upon receipt of instructions in writing from the Issuers,
authenticate and deliver to the Holder or the Holder's designee Notes
of like tenor and terms in definitive form in an
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aggregate principal amount equal to the Global Notes then outstanding
in exchange for such Global Notes.
SECTION 4. Authorized Representatives. Each Issuer hereby
certifies that each person named in Exhibit F hereto and designated as
affiliated with such Issuer is a duly Authorized Representative of such Issuer
and that the signature set forth opposite such representative's name is his or
her true and genuine signature. The Issuing and Paying Agent shall be entitled
to rely on the information set forth in Exhibit F for purposes of determining an
Authorized Representative until such time as the Issuing and Paying Agent
receives a subsequent certificate from the Issuer deleting or amending any of
the information set forth therein. The Issuing and Paying Agent shall not have
any responsibility to an Issuer to determine whether any signature on a Note
purporting to be that of an Authorized Representative in Group I of Exhibit F
with respect to such Issuer is genuine, so long as such signature resembles the
specimen signature set forth in Group I of Exhibit F or in a subsequent
certificate delivered to the Issuing and Paying Agent by such Issuer. Any Note
bearing the signature of a person who is an Authorized Representative in Group I
of Exhibit F with respect to an Issuer on the date he or she signs such Note
shall be a binding obligation of such Issuer upon the completion and
authentication thereof by the Issuing and Paying Agent, notwithstanding that
such person shall have ceased to be an Authorized Representative on the date
such Note is completed, authenticated or delivered by the Issuing and Paying
Agent.
SECTION 5. Completion, Authentication and
Delivery of Notes.
(a) From time to time, the Issuing and Paying Agent
shall receive instructions from an Authorized Representative included
in Group II on Exhibit F hereto with respect to an Issuer regarding the
completion and delivery of Notes. The Issuing and Paying Agent may rely
on such instructions if they are received by one of the duly Authorized
Representatives of the Issuing and Paying Agent named in Exhibit G
hereto or their successors, which may be named by the Issuing and
Paying Agent (of which the Issuers shall be notified in writing), from
time to time through the use of a facsimile transmission (confirmed by
guaranteed delivery of overnight courier) from any person purporting to
be
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any of the individuals included in Group II on Exhibit F hereto. Such
instructions shall include the following (each term as used or
defined in the related form of Note attached):
1. Issuer of the Note, Principal Amount of
the Note, CUSIP Number and, if applica-
ble, the Specified Currency.
2. (a) Fixed Rate Notes:
(i) Interest Rate,
(ii) Interest Payment Dates.
(iii) Regular Record Dates.
(b) Floating Rate Notes:
(i) Base Rate or Rates,
(ii) Initial Interest Rate,
(iii) Spread and/or Spread Multi-
plier, if any,
(iv) Interest Reset Date or
Dates,
(v) Interest Reset Period,
(vi) Interest Payment Dates,
(vii) Regular Record Dates,
(viii) Index Maturity,
(ix) Maximum and Minimum Interest
Rates, if any,
(x) Calculation Agent, if other
than the Issuing and Paying
Agent.
3. Price to public, if any, of the Note (or
whether the Note is being offered at varying
prices relating to prevailing
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market prices at time of resale as
determined by the Selling Agent).
4. Trade date.
5. Original Issue Date.
6. Stated Maturity.
7. Redemption provisions, if any, including
Initial Redemption Date, Initial Redemption
Percentage, Annual Redemption Reduction
Percentage, whether partial redemption is
permitted and method of determining Notes to
be redeemed.
8. Prepayment Option Date(s) and Prepayment
Option Price(s).
9. Extension provisions, if any, including
length of Extension Period(s), number of
Extension Periods and Final Maturity
Date.
10. Renewal terms, if any, including Special
Election Interval and Special Election
Period.
11. Net proceeds to the Issuer.
12. The Selling Agent's commission or under-
writing discount and the Selling Agent's
participant account at the Depositary
for settlement.
13. Whether such Notes are being sold to the
Selling Agent as principal or to an investor
or other purchaser through the Selling Agent
acting as agent for the Issuer, or through
the Issuer itself.
14. Whether such Note is being issued as an
Original Issue Discount Note and the terms
thereof.
15. Such other information specified with
respect to the Notes (whether by adden-
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dum or otherwise), including, with respect
to any Specified Currency Note, provisions
regarding the calculation of any payments
under such Note.
(b) Upon receipt of the information set forth in
subsection (a) above, the Issuing and Paying Agent will confirm by
facsimile to the Issuer the principal amount of the Notes of the Issuer
issued as of such date hereunder after giving effect to such
transaction and to all other transactions of which such Issuer has
given instructions to the Issuing and Paying Agent but which have not
yet been settled.
(c) Upon receipt of such instructions, if such Notes
are to be issued as one or more Global Notes, the Issuing and Paying
Agent shall communicate to the Depositary and the Selling Agent through
DTC's Participant Terminal System, a pending deposit message specifying
the following settlement information and any such additional
information as is required in the Administrative Procedures:
1. The information set forth in Section
5(a).
2. Identification numbers of the partici-
pant accounts maintained by the Deposi-
tary on behalf of the Issuing and Paying
Agent and the Selling Agent.
3. Identification of the Note as a Fixed
Rate Note or Floating Rate Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for
Depositary purposes (or, in the case of
Floating Rate Notes which reset daily or
weekly, the date five calendar days pre-
ceding the Interest Payment Date) and,
if then calculable, the amount of inter-
est payable on such Interest Payment
Date (which amount shall have been con-
firmed by the Issuing and Paying Agent).
5. CUSIP number representing such Note.
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6. Whether such Note represents any other
Notes issued or to be issued in book-
entry form.
(d) Instructions regarding the completion of a Note
must be received by the Issuing and Paying Agent not later than 11:00
A.M., New York City time, on the Original Issue Date.
SECTION 6. Procedure upon Sale of the Notes. The Issuing and
Paying Agent will deliver Notes to the appropriate Selling Agents on the
Original Issue Date as provided in Section 5(c) hereof.
SECTION 7. Payment of Interest; Actions on Days
Other than Business Days.
(a) Subject to the receipt of funds as provided in
Section 12 hereof, interest payments will be made on the Notes on each
Interest Payment Date and on the Stated Maturity thereof (or the date
of Optional Redemption, if any) pursuant to the terms stated thereon.
All such interest payments (other than interest due on the Stated
Maturity, or on the date of Optional Redemption, if a Note is redeemed
prior to its Stated Maturity) will be paid to the Holder of such Note
at the close of business on the applicable Regular Record Date.
Notwithstanding the foregoing, if a Note is dated between the Regular
Record Date next preceding an Interest Payment Date and such Interest
Payment Date, the first payment of interest on such Note will be made
on the next succeeding Interest Payment Date following the next
succeeding Regular Record Date, to the Holder on the Regular Record
Date immediately succeeding such first Interest Payment Date, unless
otherwise specified in the applicable Pricing Supplement. Interest will
begin to accrue on the issue date and not from the previous Interest
Payment Date. Interest on Fixed Rate Notes (including payments for
partial periods) will be calculated on the basis of a 360-day year
consisting of twelve 30-day months; provided, however, that if the term
of such Fixed Rate Note is for a period from 30 days through and
including one year, then interest payable on such Fixed Rate Note, if
any, on each Interest Payment Date and on the Stated Maturity will be
calculated on the basis of the actual number of calendar days from and
including the last Interest Payment
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<PAGE>
Date to which interest has been paid to, but excluding, such Interest
Payment Date or Stated Maturity, as the case may be, divided by 360. In
the case of Floating Rate Notes, interest will be calculated and paid
on the basis of the actual number of days since the preceding Interest
Payment Date (or, if none, since the Original Issue Date) divided by
360 or, if the base rate is the Treasury Rate or CMT Rate, as defined
in the applicable Note, by the actual number of days since the
preceding Interest Payment Date (or, if none, since the Original Issue
Date). All interest on Certificated Notes (other than interest payable
at Stated Maturity or upon any Optional Redemption) will be paid by
check of the Issuing and Paying Agent mailed by such Issuing and Paying
Agent to the Holder as such Holder's address is shown in the Register
referred to in Section 15 on the applicable Regular Record Date, or to
such other address in the United States as such Holder shall designate
to the Issuing and Paying Agent in writing not later than the relevant
Regular Record Date; provided, however, that a Holder of one million
dollars ($1,000,000) or more in aggregate Principal amount of
Certificated Notes (all of which have identical terms and tenor) shall
be entitled to receive payments of interest (other than interest
payable at maturity or upon redemption) by wire transfer of immediately
available funds upon written request to the Issuing and Paying Agent
not later than fifteen (15) calendar days prior to the applicable
Payment Date. All interest payments on any Global Note (other than
Interest due on the Stated Maturity or the Optional Redemption Date, if
any) shall be paid by the transfer of immediately available funds to
the Depositary. The Issuing and Paying Agent will withhold taxes, if
any, on interest to the extent that it has been instructed in writing
by the Issuer of the related Note that any taxes should be withheld.
(b) Actions Due on Saturdays, Sundays and Holidays.
If any date on which a payment, notice or other action required by this
Agreement, the Administrative Procedures or the Note falls on any day
other than a Business Day, then that action or payment need not be
taken or made on such date, but may be taken or made on the next
succeeding Business Day on which the Issuing and Paying Agent is open
for business with the same force and effect as if made on such date.
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<PAGE>
SECTION 8. Payment of Principal. Upon the Stated Maturity (or
date of Optional Redemption, if any) of any Note, or on each Interest Payment
Date and the Stated Maturity, in the case of an Amortizing Note, and upon
presentation and surrender of any Note on or after the Stated Maturity (or the
date of Optional Redemption, if any), the Issuing and Paying Agent shall pay,
subject to the receipt of funds as provided in Section 12 hereof, the Principal
amount of the Note together with accrued interest due on the Stated Maturity (or
the date of Optional Redemption, if any) either (i) by separate wire transfer of
immediately available funds to such account at a bank in The City of New York
(or other bank consented to by the Issuer of the related Note) as the Holder of
such Note shall have designated in writing to the Issuing and Paying Agent at
least 15 days prior to such Principal Payment Date and if such Note is a Global
Note, to the Depositary, or (ii) by check of the Issuing and Paying Agent
payable to the order of the Holder of the Note or its properly designated
assignee or custodian. The Issuing and Paying Agent will cancel the Note and
remit it directly to the Issuer thereof.
SECTION 9. Designation of Accounts to Receive Payment. In the
event that Notes are issued in certificated form, a bank account to receive
payments due under a certificated Note may be designated to the Issuing and
Paying Agent to receive payments of interest and Principal under Sections 7 and
8 hereof either (i) by an Authorized Representative of an Issuer included in
Group II of Exhibit F hereto in the authentication instructions given by it to
the Issuing and Paying Agent under Section 5(a) hereof in respect of particular
Notes, or (ii) in the event that the authentication instructions make no
designation, or that the Holder wishes to change a designation previously made,
by written notice from the Holder to the Issuing and Paying Agent. Such written
notice must be provided to the Issuing and Paying Agent not later than fifteen
(15) days prior to any Interest Payment Date, Principal Payment, Specified
Currency Payment Date on Payment Date, as the case may be.
SECTION 10. Information Regarding Amounts Due. The
Issuing and Paying Agent shall provide to each Issuer, at least five (5)
Business Days before each Interest Payment Date, a list of interest payments to
be made on the following Interest Payment Date for each Note and in total. The
Issuing and Paying Agent will provide to the Issuers by the fifteenth day of
each month a list of the Principal and
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interest to be paid on Notes maturing in the next succeeding month.
SECTION 11. Specified Currency Notes. Prior to the issuance of
any Specified Currency Note, the Issuer thereof shall provide to the Issuing and
Paying Agent a form of such Note, which form shall be in substantially the form
of Exhibit C or D hereto, with such changes and additions as may be reasonably
satisfactory to the Issuing and Paying Agent.
SECTION 12. Deposit of Funds. Each Issuer shall, prior to
11:00 a.m., New York City time, on each Interest Payment Date pay to the Issuing
and Paying Agent an amount in immediately available funds sufficient to pay all
interest due on Notes issued by such Issuer on such Interest Payment Date and
shall, prior to 11:00 a.m., New York City time, on the Stated Maturity (or any
date of Optional Redemption, if any) of any Note issued by such Issuer, pay to
the Issuing and Paying Agent an amount in immediately available funds sufficient
to pay the Principal of any such Note, and interest accrued to the Stated
Maturity (or the date of Optional Redemption, as the case may be).
SECTION 13. Optional Redemption.
(a) Optional Redemption. If so provided in the
applicable Note, an Issuer may at its option redeem a Note issued by it
in whole or from time to time in part (subject to the requirement that
the principal amount of such Note after such redemption, if such Note
is redeemed in part, (unless otherwise specified in a Pricing
Supplement) be not less than $250,000 or any integral multiple of
$1,000 in excess thereof, such minimum denomination, the "Authorized
Denomination") on or after the date designated in such Note as the
Initial Redemption Date at the applicable Redemption Price, in each
case, with accrued and unpaid interest to the date of redemption. An
Issuer may exercise such option by giving to the Holder thereof a
notice of such redemption at least thirty (30) but not more than sixty
(60) days prior to the date of redemption. In the event of redemption
of the Note in part only, a new Note or Notes of like tenor and terms
for the unredeemed portion thereof shall be issued in the name of the
Holder thereof upon the cancellation thereof in accordance with the
terms of this Agreement. Unless other
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wise provided in the applicable Note, if less than all of the Notes
with like tenor and terms to such Note are to be redeemed, the Notes to
be redeemed shall be selected by the Issuing and Paying Agent by pro
rata, by lot or by such method as shall be agreed upon by the Issuing
and Paying Agent and the Issuer as being fair and appropriate.
(b) Optional Repayment. If so provided in the
applicable Note, such Note will be repayable prior to its Stated
Maturity at the option of the Holder on the Prepayment Option Dates and
at the Prepayment Option Prices provided in the applicable Note
together with accrued interest to such date. Unless otherwise provided
in the applicable Note, in order for the Note to be repaid, the Issuer
thereof must receive, at least thirty (30) but not more than forty-five
(45) days prior to an Prepayment Option Date, the Note and the form,
entitled "Option to Elect Repayment" included with such Note at the
time of its issue, duly completed. Exercise of this repayment option
shall be irrevocable, except as otherwise provided under Section 13(c)
below. If so provided in the applicable Note, the repayment option may
be exercised by the Holder of such Note for less than the aggregate
principal amount of the Note then outstanding provided that the
principal amount of the Note remaining outstanding after repayment is
in an Authorized Denomination. Upon such partial repayment the Note
shall be cancelled and a new Note or Notes of like tenor and terms for
the remaining principal amount thereof shall be issued in the name of
the Holder.
(c) Optional Extension of Maturity. If so specified
in the applicable Note, the Stated Maturity of such Note may be
extended at the option of the Issuer thereof, in the manner set forth
below (unless otherwise provided on the face thereof), for that
number of periods each of such length as provided in the applicable
Note (each an "Extension Period") up to but not beyond the Final
Maturity Date set forth in such Note. The Issuer may exercise such
option by notifying the Issuing and Paying Agent of such exercise at
least fifty (50) but no more than sixty (60) days prior to the Stated
Maturity in effect prior to such exercise (the "Original Stated
Maturity"). If the Issuer exercises such option, the Issuing and Paying
Agent will
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<PAGE>
mail (by first class mail, postage prepaid) to the Holder of the Note
no later than forty (40) days prior to the Original Stated Maturity a
notice (the "Extension Notice") relating to such Extension Period,
setting forth (i) the election of the Issuer to extend the Original
Stated Maturity, (ii) the new Stated Maturity (which shall then be
considered the Stated Maturity for all purposes of the Note), (iii)
spread or spread multiplier applicable to the Extension Period, and
(iv) the provisions, if any, for redemption during such Extension
Period. Upon the Issuing and Paying Agent's transmittal of the
Extension Notice, the Original Stated Maturity of the Note shall be
extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, such Note will have the same
terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than twenty
(20) days prior to the Original Stated Maturity of such Note an Issuer
may, at its option, in the case of a Fixed Rate Note, revoke the
interest rate provided for in the Extension Notice for the Extension
Period and establish an interest rate that is higher than the interest
rate provided for in the Extension Notice for the Extension Period, or
in the case of a Floating Rate Note, revoke the spread or spread
multiplier provided for in the Extension Notice for the Extension
Period by causing the Issuing and Paying Agent to transmit notice of
such higher interest rate, or higher spread or spread multiplier, as
the case may be, to the Holder of such Note. Such notice shall be
irrevocable. All Notes with respect to which the Stated Maturity is
extended and with respect to which the Holders of such Notes have not
tendered such Notes for repayment (or have validly revoked any such
tender) pursuant to the succeeding paragraph will bear such higher
interest rate, or higher spread or spread multiplier, as the case may
be, for the Extension Period.
If an Issuer elects to extend the Stated Maturity of
the Note, the Holder thereof will have the option to elect repayment of
the Note by the Issuer thereof on the Original Stated Maturity at a
price equal to the aggregate principal amount thereof outstanding plus
interest accrued to such date. In order to obtain such repayment, the
Holder thereof must fol-
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<PAGE>
low the procedures set forth in Section 13(b) for optional repayment
except that the period for delivery of the Note or notification to the
Issuing and Paying Agent shall be at least twenty-five (25) but not
more than thirty-five (35) days prior to the Original Stated Maturity
and except that, if the Holder thereof has tendered the Note for
repayment pursuant to an Extension Notice, such Holder may, by written
notice to the Issuing and Paying Agent, revoke such tender for
repayment until the close of business on the tenth day prior to the
Original Stated Maturity.
(d) Optional Renewal. If so provided in the
applicable Note, such Note may be renewed by the Holder of the Note on
an Interest Payment Date (provided in the applicable Note) occurring in
or prior to the twelfth month following the Original Issue Date (the
"Initial Maturity Date") in accordance with the procedures described
below.
Unless a Special Election Interval is provided in the
applicable Note, on the Interest Payment Date occurring in the sixth
month prior to the Initial Maturity Date (as provided in the applicable
Note) of a Renewable Note (the "Initial Renewal Date") and on the
Interest Payment Date occurring in each sixth month (or in the last
month of each Special Election Interval) after such Initial Renewal
Date (each, together with the Initial Renewal Date, a "Renewal Date"),
the term of the Note may be extended to the Interest Payment Date
occurring in the twelfth month (or, if a Special Election Interval is
specified the last month in a period equal to twice the Special
Election Interval) after such Renewal Date, if the Holder of such Note
elects to extend the term of the Note or any portion thereof as
provided below. If the Holder of the Note does not elect to extend the
term of any portion of the principal amount of such Note during the
specified period prior to any Renewal Date, such portion will become
due and payable on the Interest Payment Date occurring in the sixth
month (or the last month in the Special Election Interval) after such
Renewal Date (the "New Maturity Date").
A Holder of such Note may elect to renew the term of
the Note, or if provided in the applicable Note, any portion
constituting an Authorized Denomina-
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tion thereof, by delivering a notice to such effect to the Issuing and
Paying Agent not less than fifteen (15) nor more than thirty (30) days
prior to such Renewal Date (unless a different Special Election Period
is provided in the applicable Note). Such election will be irrevocable
and will be binding upon each subsequent Holder of the Note. An
election to renew the term of such Note may be exercised with respect
to less than the entire principal amount of the Note only if notice is
provided as provided in the applicable Note and only in such principal
amount, or any integral multiple in excess thereof, as specified in
such notice. Notwithstanding the foregoing, the term of such Note may
not be extended beyond the maturity provided in the applicable Note.
If the Holder of such Note does not elect to renew
the term of the Note, the Note must be presented to the Issuing and
Paying Agent (or any duly appointed paying agent) and, if the Note is
issued in definitive form, as soon as practicable following receipt of
the Note, the Issuing and Paying Agent (or any duly appointed paying
agent) shall issue in exchange herefor in the name of the Holder (i) a
Note, in a principal amount equal to the principal amount of such Note
for which no election to renew the term thereof was exercised, with
terms identical to those specified on the Note (except that such Note
shall have a fixed, nonrenewable maturity on the New Maturity Date) and
(ii) if an election to renew is made with respect to less than the full
principal amount of the Note, a replacement Note, in a principal amount
equal to the principal amount of such exchanged Note for which the
election to renew was made, with terms identical to such exchanged
Note.
SECTION 14. Events of Default.
Unless otherwise specified in the applicable Note, the
following will constitute "Events of Default" and the only Events of Default
with respect to each Note: (a) default in the payment of any interest upon such
Note when due, which continues for thirty (30) days; (b) default in the payment
of any principal of or premium, if any, upon such Note when due; (c) default in
the performance of any covenant or agreement of the Issuer thereof contained in
such Note which, unless otherwise specified therein, contin-
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ues for 90 days; (d) the appointment of a conservator, receiver,
liquidator or similar official for the Issuer thereof or for all or
substantially all of its property, or the taking by the Issuer thereof of any
action to seek relief under any applicable insolvency or reorganization law.
If an Event of Default with respect to a Global Note shall
occur, the Issuer thereof shall promptly issue Certificated Notes in exchange
for such Global Note and the remedies provided in such Global Note for any such
Event of Default will be exercisable only after such exchange has occurred, and
only by the Holders of such Certificated Notes. The Holder of each such
Certificated Note will itself be solely and entirely responsible for the
exercise of any remedies provided therein.
If an Event of Default with respect to a Certificated Note
shall occur and be continuing with respect thereto, the Holder thereof may: (i)
by written notice to the Issuing and Paying Agent declare the entire outstanding
principal amount thereof, together with any unpaid interest and premium accrued
thereon, to be immediately due and payable; (ii) institute a judicial proceeding
of the enforcement of the terms thereof including the collection of all sums due
and unpaid thereunder, prosecute such proceeding to judgment or final decree,
and enforce the same against the Issuer thereof and collect monies adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer thereof; and (iii) take such other action at law or in equity as may
appear necessary or desirable to collect and enforce such Certificated Note;
provided, however, that in the event that such Note is an Original Issue
Discount Note, unless otherwise specified in such Note, the amount of principal
that becomes due and payable upon such declaration shall be equal to the
Amortized Face Amount as defined therein, and provided further, that the Holder
of a Certificated Note may waive any Event of Default that occurs with respect
thereto.
SECTION 15. Registration; Transfer.
(a) The Registrar shall maintain a Register in which
it shall register the names, addresses and taxpayer identification
numbers of the Holders of the Notes and shall register the transfer of
Notes.
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(b) Upon surrender for registration of transfer of
any Note to the Registrar or any Transfer Agent, the Issuer thereof
shall execute, and the Issuing and Paying Agent shall complete,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any Authorized Denominations and
having identical terms and provisions and for a like aggregate
principal amount.
(c) At the option of the Holder of a certificated
Note, certificated Notes may be exchanged for other certificated Notes
of any Authorized Denominations and having identical terms and
provisions and for a like aggregate principal amount, upon surrender of
the Notes to be exchanged at the Registrar or any Transfer Agent.
Whenever any certificated Notes are so surrendered for exchange, the
Issuer thereof shall execute, and the Issuing and Paying Agent shall
complete, authenticate and deliver, the certificated Notes which the
Holder of the certificated Note making the exchange is entitled to
receive. Each new Note issued upon presentment of any Note for
registration of transfer or exchange shall be issued as of the date of
its authentication. Except as provided herein, owners of beneficial
interests in a Global Note representing Book Entry Notes registered in
their names, will not receive or be entitled to receive physical
delivery of Certificated Notes and will not be considered the owners or
Holders thereof under this Agreement.
(d) Notwithstanding the foregoing neither the
Registrar or any Transfer Agent shall register the transfer of or
exchange (i) any Note that has been called for redemption in whole or
in part, except the unredeemed portion of Notes being redeemed in part,
(ii) any Note during the period beginning at the opening of business 15
days before the mailing of a notice of such redemption and ending at
the close of business on the date of such mailing, or (iii) any Global
Note in violation of the legend contained on the face of such Global
Note.
(e) All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the
Issuer thereof, evidencing the same debt, and entitled to the same
benefits as the Notes
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surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer with such evidence of
due authorization and guaranty of signature as may reasonably be
required by the Registrar or any Transfer Agent, as applicable, in form
satisfactory to either of them, duly executed by the Holder thereof or
his attorney duly authorized in writing.
(g) No service charge shall be made to a Holder of
Notes for any transfer or exchange of Notes, but the Issuer thereof may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
SECTION 16. Persons Deemed Owners. Prior to due presentment of
a Note for registration of transfer, the Issuer thereof, the Issuing and Paying
Agent and any agent of such Issuer or the Issuing and Paying Agent may treat the
Holder as the owner of such Note for the purpose of receiving payment of
Principal of, interest and premium, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither such
Issuer, the Issuing and Paying Agent nor any agent of such Issuer or the Issuing
and Paying Agent shall be affected by notice to the contrary.
SECTION 17. Mutilated, Lost, Stolen or Destroyed Notes. In
case any Note shall become mutilated, destroyed, lost or stolen, and upon the
satisfaction by the applicant of the requirements of this Section 17 for a
substituted Note, the Issuer thereof shall execute, and upon its written request
the Issuing and Paying Agent shall authenticate and deliver, a new Note having
identical terms and provisions and having a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note or in lieu of
any substitution for the Note destroyed, lost or stolen. In the case of loss,
theft or destruction, the applicant for a substituted Note shall furnish to such
Issuer and to the Issuing and Paying Agent such security or indemnity as may be
required by them to save each of them harmless. Such applicant shall also
furnish to such Issuer and to the Issuing and Paying Agent evidence to their
satisfaction of the
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destruction, loss or theft of such Note and of the ownership thereof. In the
case of mutilation, the applicant for a substituted Note shall surrender such
mutilated Note to the Issuer thereof or to the Issuing and Paying Agent for
cancellation thereof. The Issuing and Paying Agent may authenticate any such
substituted Note and deliver the same upon the written request or authorization
of any Authorized Representative. Upon the issuance of any substituted Note, the
Issuer thereof may require the payment of a sum sufficient to cover any expense
connected therewith. In case any Note which has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Issuer thereof may,
instead of issuing a substituted Note, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Note) if the
applicant for such payment shall furnish such Issuer and the Issuing and Paying
Agent with such security or indemnity as may be required by them to save each of
them harmless, and, in the case of destruction, loss or theft, evidence to the
satisfaction of such Issuer of the destruction, loss or theft of such Note and
of the ownership thereof. All applications under this Section shall be processed
by the Issuing and Paying Agent.
SECTION 18. Return of Unclaimed Funds. Any money deposited
with the Issuing and Paying Agent and remaining unclaimed for two (2) years
after the date upon which the last payment of principal of or interest on any
Note to which such deposit relates shall have become due and payable, shall be
repaid to the Issuer of such Note by the Issuing and Paying Agent on written
demand, and the Holder of any Note to which such deposit related entitled to
receive payment shall thereafter look only to the Issuer thereof for the payment
thereof and all liability of the Issuing and Paying Agent with respect to such
money shall thereupon cease.
SECTION 19. Amendment or Supplement. The Issuers and the
Issuing and Paying Agent may modify, amend or supplement this Agreement without
the consent of any Holder. In addition, an Issuer may modify, amend or
supplement the terms and conditions of the Notes issued by it, without the
consent of any Holder thereof: (i) to evidence succession of another party to
such Issuer, and such party's assumption of such Issuer's obligations under the
Notes, upon the occurrence of a merger or consolidation, or transfer, sale or
lease of assets as described below; (ii) to add addition
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al covenants, restrictions or conditions for the protection of the Holder
thereof; (iii) to cure ambiguities in the Notes, or correct defects or
inconsistencies in the provisions thereof; (iv) to reflect the replacement of
the Issuing and Paying Agent, or the assumption, by such Issuer or a substitute
Issuing and Paying Agent of some or all of the Issuing and Paying Agent's or
Calculation Agent's responsibilities under this Agreement; (v) to evidence the
replacement or change of address of the Depositary; (vi) in the case of any
extendible, redeemable, prepayable, amortizing or indexed amortizing Note, to
reduce the principal amount thereof to reflect the payment, prepayment and/or
redemption of a portion of the outstanding principal amount thereof; (vii) in
the case of any extendible, renewable or indexed amortizing Note, to reflect any
change in the maturity date thereof in accordance with the terms thereof; or
(viii) to reflect the issuance in exchange therefor, in accordance with the
terms thereof, of one or more certificated notes. However, the Notes may not be
modified or amended without the express written consent of the registered Holder
to: (i) change the Stated Maturity, except in the case of an extendible,
renewable or indexed amortizing note as provided therein; (ii) extend the time
of payment for the premium, if any, or interest on the Note, except in the case
of an extendible, renewable or indexed amortizing note as provided therein;
(iii) change the coin or currency in which the principal of, premium, if any, or
interest on the Note is payable; (iv) reduce the principal amount thereof or the
interest rate thereon, except in the case of an extendible, prepayable,
redeemable, amortizing or indexed Note as provided therein; (v) change the
method of payment to other than wire transfer in immediately available funds;
(vi) impair the right of the Holder thereof to institute suit for the
enforcement of payments of principal of, premium, if any, or interest or other
amounts on the Note; (vii) change any Note's definition of "Event of Default" or
otherwise eliminate or impair any remedy available thereunder upon the
occurrence of any Event of Default (as defined in such Note); or (viii) modify
the provisions therein governing the amendment thereof.
Notes authenticated and delivered after the execution of any
agreement modifying, amending or supplementing this Agreement or the Notes may
bear a notation in form approved by the Issuer thereof as to any matter provided
for in such modification, amendment or supplement to this Agreement or the
Notes. New Notes so modified as to conform, in
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the opinion of the Issuer thereof, to any provisions contained in any such
modification, amendment or supplement may be prepared by such Issuer,
authenticated by the Issuing and Paying Agent (or any Authenticating Agent) and
delivered in exchange for Outstanding Notes.
No Issuer may consolidate or merge with or into any other
person, or convey, transfer or lease its properties and assets substantially as
an entirety to any person, unless (i) the surviving entity in such consolidation
or merger, or the person that acquires by conveyance or transfer, or that
leases, the properties and assets of such Issuer substantially as an entirety,
shall be a bank, corporation or partnership organized and validly existing under
the laws of the United States, any State thereof or the District of Columbia,
and shall expressly assume the due and punctual payment of the principal of,
premium, if any, and interest on the Notes issued by such Issuer, and the
performance or observance of every provision of the Notes on the part of such
Issuer to be performed or observed; and (ii) immediately after giving effect to
such transaction, no Event of Default with respect to such Issuer, and no event
which, after notice or the lapse of time or both, would become an Event of
Default with respect to such Issuer, shall have happened and be continuing.
If this Agreement is amended or modified pursuant to an
agreement by the parties hereto pursuant to this Section 19, the Issuing and
Paying Agent may require, and shall be fully protected in relying upon, an
opinion of counsel, which opinion may be rendered by counsel to the Issuer,
stating that the execution of such amendment or modification is authorized or
permitted by this Agreement, and that such amendment or modification constitutes
the legal, valid and binding obligation of the Issuers enforceable in accordance
with its terms and subject to customary exceptions.
SECTION 20. Resignation or Removal of Agents;
Appointment of Successors to Agents.
(a) Resignation or Removal of Agent. Any Agent may at
any time resign as such by giving written notice to the Issuers and,
except in the case of the resignation of the Issuing and Paying Agent,
to the Issuing and Paying Agent of such intention on its part,
specifying the date on which its desired resignation
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shall become effective; provided that such date shall not be less than
thirty (30) days after the date on which such notice is given unless
each Issuer agrees to accept less notice.
An Issuer may remove any Agent with respect to Notes
issued by such Issuer at any time by filing with it an instrument in
writing signed by or on behalf of such Issuer and specifying such
removal and the date when it shall become effective.
The resignation or removal of an Agent with respect
to Notes issued by an Issuer shall become effective on the date set
forth in the notice thereof and shall only be effective with respect to
such Issuer and Notes issued by such Issuer, except that any
resignation or removal of the Issuing and Paying Agent or the Registrar
shall take effect upon the Issuers' appointment, as hereinafter
provided, of a successor Issuing and Paying Agent or Registrar, as the
case may be, and such Agent's acceptance of such appointment; provided,
that if the Issuers have not appointed a replacement Agent within 30
days after any such removal or replacement, the affected Agent (at the
expense of the Issuers) may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(b) Appointment of Successor to Agent. In case at
any time the Issuing and Paying Agent or the Registrar becomes
incapable of acting, or is adjudged bankrupt or insolvent, or files a
petition for corporate reorganization under any applicable federal,
state, or foreign bankruptcy, insolvency, or similar law or makes an
assignment for the benefit of its creditors, or consents to the
appointment of a receiver, custodian, or other similar official of all
or substantially all of its property, or admits in writing its
inability to pay or meet its debts as they mature, or if a receiver,
custodian, or other similar official of it or of all or substantially
all of its property is appointed, or if an order of any court is
entered for relief against it under the provisions of any applicable
federal, state or foreign bankruptcy, insolvency or similar law, or if
any public officer takes charge or control of any such Agent, or of its
property or affairs, for the purpose of rehabilitation, conservation
or liquidation, such Agent shall promptly notify the
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Issuers and the Issuing and Paying Agent, in writing, of the
occurrence of such event.
Either (i) following receipt of notice of resignation
from, (ii) upon an Issuer's removal of, or (iii) following the Issuers'
receipt of the notice referred to in the first paragraph of this
Section 20(b) from, the Issuing and Paying Agent or the Registrar, the
Issuers (or the applicable Issuer, in the case of clause (ii) above)
shall appoint a successor to such Agent by an instrument in writing
filed with the Issuing and Paying Agent (or its successor). Upon the
appointment as aforesaid of a successor Issuing and Paying Agent or
Registrar and acceptance by such successor of such appointment, the
Issuing and Paying Agent or Registrar hereunder so superseded shall
cease to be such Issuing and Paying Agent or Registrar hereunder.
(c) Successor of Agent. Any successor Issuing and
Paying Agent or Registrar appointed hereunder shall execute,
acknowledge, and deliver to its predecessor and to the Issuers (or the
applicable Issuer) an instrument accepting such appointment hereunder,
and thereupon such successor Issuing and Paying Agent or Registrar
without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties, and
obligations of such predecessor, with like effect as if originally
named as such Issuing and Paying Agent or Registrar hereunder. Such
predecessor, upon payment of any amount then payable to it pursuant to
Section 24, shall thereupon become obligated to transfer, deliver and
pay over, and such successor Issuing and Paying Agent or Registrar
shall be entitled to receive, all money, securities and other property
on deposit with or held by such predecessor as such Issuing and Paying
Agent or Registrar hereunder.
(d) Merger, Etc. of Agent. Any corporation into
which any Agent hereunder may be merged, or converted, or any
corporation with which any Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which any Agent shall be a party, or a corporation to which any Agent
shall sell or otherwise transfer all or substantially all of the assets
and business of such Agent shall be
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the successor to such Agent under this Agreement (provided that it
shall be qualified as aforesaid) without the execution or filing of any
paper or any further act on the part of any of the parties hereto. Each
Agent will advise the Issuers promptly after any public announcement of
a proposal by such Agent to enter into any such transaction.
(e) Change in Duties of an Agent. The Issu-
ers may vary the appointment of any Agent other than
the Issuing and Paying Agent.
(f) Additional Agents. Each Issuer may from time to
time appoint a paying agent for one or more Notes. In the event that
(i) the Issuing and Paying Agent shall be removed or resign and any
successor thereto shall not be located in The City of New York or (ii)
the Issuing and Paying Agent shall cease to maintain an office in The
City of New York at which amounts due on the Notes are payable, then in
either such case each Issuer, with respect to Notes issued by it, shall
appoint a paying agent with an office in The City of New York at which
such Notes may be paid.
SECTION 21. Reliance on Instructions. The Issuing and Paying
Agent shall incur no liability to an Issuer in acting hereunder upon
instructions contemplated hereby which the Issuing and Paying Agent believed in
good faith to have been properly given. In the event a discrepancy exists
between the instructions as originally received by the Issuing and Paying Agent
and any subsequent written confirmation thereof, such original instructions will
be deemed controlling provided the Issuing and Paying Agent gives notice to the
applicable Issuer of such discrepancy promptly upon receipt of such written
confirmation.
SECTION 22. Cancellation of Unissued Notes. Promptly upon the
written request of an Issuer, the Issuing and Paying Agent shall cancel and
return to such Issuer all unissued Notes of such Issuer in its possession.
SECTION 23. Representation and Warranties of the
Issuers; Instructions by Certificate.
(a) Each instruction given to the Issuing and Paying
Agent in accordance with Section 5 hereof shall constitute a
representation and warranty to the
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Issuing and Paying Agent by the applicable Issuer that the issuance and
delivery of the Notes have been duly and validly authorized by such
Issuer and, when completed, authenticated and delivered pursuant
hereto, the Notes will constitute the valid and legally binding
obligations of such Issuer enforceable against such Issuer in
accordance with its terms.
(b) Any instruction given by an Issuer to the Issuing
and Paying Agent under this Agreement shall be in the form of an
Officers' Certificate. For the purposes of this Agreement, "Officers'
Certificate" means a certificate signed by an Authorized Representative
and delivered to the Issuing and Paying Agent.
SECTION 24. Fees. For their services under this Agreement, the
Agents, including the Issuing and Paying Agent, shall be entitled to
compensation as shall be mutually agreed upon in writing between each such Agent
and the Issuers from time to time and the Issuers jointly and severally agree to
reimburse the Issuing and Paying Agent for all reasonable out of pocket
disbursements and advances made or incurred by the Issuing and Paying Agent
incurred without negligence or willful misconduct.
SECTION 25. Notices.
(a) All communications by or on behalf of an Issuer
relating to the completion, delivery or payment of the Notes are to be
directed to the Corporate Trust Agency Group of the Issuing and Paying
Agent, Four Albany Street, 4th floor, New York, New York 10006,
Attention: Corporate Trust and Agency Group (or such other department
or division as the Issuing and Paying Agent shall specify in writing to
the Issuers). Each Issuer will send all Notes to be completed and
delivered by the Issuing and Paying Agent to such Corporate Trust and
Agency Group (or such other department or division as the Issuing and
Paying Agent shall specify in writing to the Issuers). The Issuing and
Paying Agent will, upon written request, advise the Issuers from time
to time of the individuals generally responsible for the administration
of this Agreement.
(b) Notices and other communications hereunder shall
(except to the extent otherwise expressly provided) be in writing and
shall be addressed as fol-
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lows, or to such other address as the party receiving such notice
shall have previously specified:
If to an Issuer:
NationsBank, N.A. (Carolinas)
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 388-2375
Telecopier: (704) 386-9946
Attention: James T. Houghton
NationsBank of Texas, N.A.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 388-2375
Telecopier: (704) 386-9946
Attention: James T. Houghton
NationsBank of Georgia, N.A.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 388-2375
Telecopier: (704) 386-9946
Attention: James T. Houghton
If to the Issuing and Paying Agent:
Bankers Trust Company
Four Albany Street,
4th floor,
New York, New York 10006
Telephone: (212) 250-6161
Telecopier: (212) 250-6961/6392
Attention: Corporate Trust and Agency Group
SECTION 26. Information Furnished by the Issuing and Paying
Agent. Upon the reasonable request of an Issuer and from time to time, the
Issuing and Paying Agent shall promptly provide such Issuer with information
with respect to Notes issued by it hereunder to the extent such information is
reasonably available.
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SECTION 27. Liability. Neither the Issuing and Paying Agent
nor its officers or employees shall be liable to an Issuer for any act or
omission hereunder except in the case of negligence or willful misconduct. The
duties and obligations of the Issuing and Paying Agent, its officers and
employees shall be determined by the express provisions of this Agreement and
they shall not be liable except for the negligent performance of such duties and
obligations as are specifically set forth herein and no implied covenants shall
be read into this Agreement against them. Neither the Issuing and Paying Agent
nor its officers shall be required to ascertain whether any issuance or sale of
Notes (or any amendment or termination of this Agreement) is in compliance with
any other agreement to which any Issuer is a party (whether or not any of the
Agents is also a party to such other agreement).
SECTION 28. Additional Responsibilities; Attorneys'
Fees.
(a) If an Issuer shall ask the Issuing and Paying
Agent to perform any duties not specifically set forth in the Agreement
as duties of the Issuing and Paying Agent (the "Additional
Responsibilities") and the Issuing and Paying Agent chooses to perform
such Additional Responsibilities, the Issuing and Paying Agent shall be
held to the same standard of care and shall be entitled to all the
protective provisions (including, but not limited to, indemnification)
set forth herein.
(b) In the event an Issuer shall default under any
of the provisions or obligations of this Agreement, the Notes or any
amendment, supplement or modification related hereto, affecting the
rights or duties of the Issuing and Paying Agent, and the Issuing and
Paying Agent shall employ attorneys or incur other expenses for the
enforcement of performance or observance of any such obligation or
agreement, such Issuer agrees that, in the absence of negligence or
willful misconduct on the part of the Issuing and Paying Agent, it will
on demand therefore pay to the Issuing and Paying Agent the reasonable
fees of such attorneys and such other expenses incurred by the Issuing
and Paying Agent.
SECTION 29. Transfer of Notes and Moneys.
(a) The Issuing and Paying Agent shall hold all
Certificated Notes delivered to it for payment solely for the benefit
of the respective Holders of the Notes which
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shall have so delivered such Notes until moneys representing the
payment for such Notes shall have been delivered to or for the account
of or to the order of such Holders.
(b) The Issuing and Paying Agent shall hold all
moneys delivered to it pursuant to this Agreement for the payment of
Certificated Notes in trust solely for the benefit of the person or
entity which shall have so delivered such moneys until such Notes shall
have been delivered to or for the account of such person or entity, but
such moneys need not be segregated from other funds except to the
extent required by law.
(c) The Issuing and Paying Agent shall only make such
payments called for under this Agreement from funds transferred to it
for payment pursuant to this Agreement which funds are immediately
available and on deposit in an appropriate account maintained by the
Issuing and Paying Agent in The City of New York.
(d) Under no circumstances shall the Issuing and
Paying Agent be obligated to expend any of its own funds in connection
with the performance of its duties hereunder.
(e) The Issuing and Paying Agent may become a
purchaser, holder, transferor or otherwise own, hold or transfer any
Notes and may commence or join in any action which a Holder is entitled
to take without any conflict with its responsibilities pursuant to this
Agreement.
(f) The Issuing and Paying Agent shall not be
required to invest any moneys delivered to it.
(g) The Issuing and Paying Agent shall have no
liability for interest on any moneys received from the
Issuer hereunder.
(h) The Issuing and Paying Agent shall not be
responsible for the correctness of any recital in the Notes or in any
offering materials and makes no representations as to the validity of
the Notes and shall incur no responsibility in respect thereto.
(i) The Issuing and Paying Agent shall be protected
in acting upon any notice, order, requisition, request, consent,
certificate, order, opinion (including
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an opinion of counsel), affidavit, letter, telegram or other paper or
document in good faith deemed by it to be genuine and correct and to
have been signed or sent by the proper person or persons.
(j) Any action taken by the Issuing and Paying Agent
pursuant to this Agreement upon the request or authority or consent of
any person who at the time of making such request or giving such
authority or consent is the Holder of any Note shall be conclusive and
binding upon all future holders of the same Note and Notes issued in
exchange therefor or in place thereof.
(k) Any instruction given by an Issuer to the Issuing
and Paying Agent under this Agreement shall be in the form of an
Officers' Certificate. For the purposes of this Agreement, "Officers'
Certificate" means a certificate signed by an Authorized Representative
and delivered to the Issuing and Paying Agent.
(l) In paying Notes hereunder, the Issuing and Paying
Agent shall be acting as a conduit and shall not be paying Notes for
its own account, and in the absence of written notice from an Issuer to
the contrary and in the absence of gross negligence or wilful
misconduct of the Issuing and Paying Agent, the Issuing and Paying
Agent shall be entitled to assume that any Global Note presented to it,
or deemed presented to it, for payment, is entitled to be so paid.
SECTION 30. Indemnity. The Issuers covenant and agree to
jointly and severally indemnify the Issuing and Paying Agent (including its
directors, officers, attorneys, employees and agents) for, and to hold it
harmless against, any loss, liability or expense (including reasonable
attorney's fees and disbursements) incurred without negligence or willful
misconduct on its part, arising out of or in connection with this Agreement or
the Administrative Procedures and/or the performance of the Issuing and Paying
Agent's duties hereunder and the Administrative Procedures, including the
reasonable costs and expenses of defending it against any claim of liability in
the premises. The Issuing and Paying Agent may refuse to perform any duty or
exercise any right or power hereunder unless it receives indemnity satisfactory
to it against any related loss, liability or expense. These indemnification
obligations shall survive the termination of this Agreement including any
termination under state or federal banking law or other insol-
41
<PAGE>
vency law, to the extent enforceable under applicable law, and shall
survive the resignation or removal of the Issuing and Paying Agent while
remaining applicable to any action taken or omitted by the Issuing and Paying
Agent while acting pursuant to this Agreement.
SECTION 31. Limitation of Liability; Reliance on
Opinions and Certificates.
(a) THE ISSUING AND PAYING AGENT'S DUTIES ARE MINISTERIAL IN
NATURE AND IN NO EVENT SHALL THE ISSUING AND PAYING AGENT BE LIABLE, DIRECTLY OR
INDIRECTLY, TO ANY PERSON OR ENTITY FOR ANY (a) LOSS, LIABILITY, DAMAGES OR
EXPENSES (OTHER THAN, IN THE CASE OF THE ISSUERS ONLY, THOSE WHICH RESULT
DIRECTLY FROM THE ISSUING AND PAYING AGENT'S NEGLIGENCE OR WILLFUL MISCONDUCT)
OR (b) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ISSUING AND PAYING
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF
LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, INCLUDING WITHOUT
LIMITATION FOR BREACH OF THIS CONTRACT OR TORT (INCLUDING NEGLIGENCE).
(b) The Issuing and Paying Agent shall be entitled to consult
with counsel of its choosing and shall have no liability to an Issuer in respect
of an action taken or omitted by the Issuing and Paying Agent in good faith in
reliance on an opinion of counsel or an Officers' Certificate, including
in-house counsel.
(c) Notwithstanding anything to the contrary herein, the
Issuing and Paying Agent shall not be responsible for any misconduct or
negligence on the part of any agent, correspondent, attorney or receiver
appointed with due care by it hereunder.
SECTION 32. Benefit of Agreement. This Agreement is solely for
the benefit of the parties hereto and the Holders and their successors and
assigns and no other person shall acquire or have any rights under or by virtue
hereof.
SECTION 33. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to agreements to be entered into and to be performed in such State.
42
<PAGE>
SECTION 34. Headings and Table of Contents. The table of
contents and the section and subsection headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 35. Counterparts. This Agreement may be
signed in separate counterparts, each of which shall be deemed
to be an original and all of which together shall constitute
but one and the same instrument.
SECTION 36. Termination of Prior Issuing and Paying Agent
Agreements. Each Issuer and Bankers Trust Company agree that on the day on which
no notes issued by such Issuer and authenticated and delivered under the Issuing
and Paying Agent Agreement with an April 30, 1993 Effective Date entered into
between Bankers Trust Company and such Issuer remain outstanding, such agreement
shall terminate (other than the provisions contained therein which by their
terms survive termination).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
43
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers duly authorized
thereunto, as of the day and year first above written.
NATIONSBANK, N.A. (CAROLINAS), as Issuer
By: /s/
Name: James T. Houghton
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A., as Issuer
By: /s/
Name: James T. Houghton
Title: Senior Vice President
NATIONSBANK OF GEORGIA, N.A., as Issuer
By: /s/
Name: James T. Houghton
Title: Senior Vice President
BANKERS TRUST COMPANY,
as Issuing and Paying Agent
By: /s/
Name: Jenna Rossheim
Title: Assistant Vice President
<PAGE>
</TABLE>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>6
<DESCRIPTION>EXHIBIT 4(O)
<TEXT>
<PAGE>
ARTICLES OF ASSOCIATION
OF
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
Charter No. 13068
FIRST. The title of this association shall be
"NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)".
SECOND. The main office of this association shall be in
the City of Atlanta, County of Fulton, State of Georgia. The general
business of the association shall be conducted at its main office and
its branches.
THIRD. The board of directors of this association shall
consist of not less than five nor more than twenty-five persons, the
exact number to be fixed and determined from time to time by resolution
of a majority of the full board of directors or by resolution of the
shareholders. Each director shall own common or preferred stock of the
association or of a holding company owning the association in an amount
sufficient to satisfy the applicable requirements of the national
banking laws, regulations and rules in effect from time to time.
Any vacancy in the board of directors may be filled by
action of a majority of the remaining directors between meetings of
shareholders. The board of directors may not increase the number of
directors to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less;
and (2) exceeds by more than four the number of directors last elected
by shareholders where the number was 16 or more, but in no event shall
the number of directors exceed 25.
Terms of directors, including directors selected to fill
vacancies, shall expire at the next regular meeting of shareholders at
which directors are elected, unless the directors resign or are removed
from office.
Despite the expiration of a director's term, the
director shall continue to serve until his or her successor is elected
and qualifies or until there is a decrease in the number of directors
and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the
shareholders to elect directors and transact whatever other business may
be brought before the meeting. It shall be held at the main office or
any other convenient place the board of directors may designate, on the
day of each year specified therefor in the bylaws. If no election is
held on the day fixed, an election may be held on any subsequent day
within 60 days of the
1
<PAGE>
day fixed, to be designated by the board of directors, or, if the
directors fail to fix the day, by shareholders representing two-thirds
of the shares issued and outstanding.
In all elections of directors, the number of votes each
common shareholder may cast will be determined by multiplying the number
of shares he or she owns by the number of directors to be elected. Those
votes may be cumulated and cast for a single candidate or may be
distributed among two or more candidates in the manner selected by the
shareholder. On all other questions, each common shareholder shall be
entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written
notice to the board of directors, its chairperson, or to the
association, which resignation shall be effective when the notice is
delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting
called to remove him or her, when notice of the meeting stating that the
purpose or one of the purposes is to remove him or her is provided, if
there is a failure to fulfill one of the affirmative requirements for
qualification, or for cause, provided, however, that a director may not
be removed if the number of votes sufficient to elect him or her under
cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this
association shall be one billion two hundred million dollars
($1,200,000,000) divided into sixty million (60,000,000) shares of
common stock of the par value of twenty dollars ($20) each, and ten
million (10,000,000) shares of preferred stock, no par value, but the
capital stock may be increased or decreased from time to time, according
to the provisions of the laws of the United States.
The shares may be issued from time to time as authorized
by the board of directors without further approval of shareholders,
except as otherwise provided in this Article Fifth or to the extent
that such approval is required by governing law, rule, or regulation.
The consideration for the issuance of the shares shall
be paid in full before their issuance and shall not be less than the par
value of shares having par value. Neither promissory notes nor future
services shall constitute payment or part payment for the issuance of
shares this association. The consideration for the shares shall be
cash, tangible or intangible property (to the extent direct investment
in such property would be permitted), labor, or services actually
performed for this association, or any combination of the foregoing. In
the absence of actual fraud in the transaction, the value of such
property, labor, or services, as determined by the board of directors of
the association shall be conclusive. Upon payment of such
consideration, such shares shall be deemed to be fully paid and
nonassessable. In the case of a stock dividend, that part of the
surplus of the association which is transferred to stated capital upon
2
<PAGE>
the issuance of shares as a share dividend shall be deemed to be the
consideration for their issuance.
No shares of capital stock (including shares issuable
upon conversion, exchange, or exercise of other securities) shall be
issued, directly or indirectly, to officers, directors or controlling
persons of the association other than as part of a general public
offering or as qualifying shares to a director, unless their issuance or
the plan under which they would be issued has been approved by a
majority of the total votes eligible to be cast at a legal meeting.
Nothing contained in this Article Fifth (or in any
supplementary sections hereto) shall entitle the holders of any class of
a series of capital stock to vote as a separate class or series or to
more than one vote per share, except as to the cumulation of votes for
the election of directors: Provided, That this restriction on voting
separately by class or series shall not apply:
(i) To any provision which would authorize the holders
of preferred stock, voting as a class or series, to elect some members
of the board of directors, less than a majority thereof, in the event of
default in the payment of dividends on any class or series of preferred
stock;
(ii) To any provision which would require the holders
of preferred stock, voting as a class or series to approve the merger or
consolidation of the association with another corporation or the sale,
lease, or conveyance (other than by mortgage or pledge) of properties or
business in exchange for securities of a corporation other than the
association if the preferred stock is exchanged for securities of such
other corporation: Provided, That no provision may require such
approval for transactions undertaken with the assistance or pursuant to
the direction of the Office of the Comptroller of the Currency or the
Federal Deposit Insurance Corporation; or
(iii) To any amendment which would adversely change the
specific terms of any class or series of capital stock a set forth in
this Article Fifth (or in any supplementary sections hereto), including
any amendment which would create or enlarge any class or series ranking
prior thereto in rights and preferences. An amendment which increases
the number of authorized shares of any class or series of capital stock,
or substitutes the surviving association in a merger or consolidation
for the association, shall not be considered to be such an adverse
change. A description of the different classes and series (if any) of
the association's capital stock and a statement of the designations, and
the relative rights, preferences, and limitations of the shares of each
class of and series (if any) of capital stock are as follows:
A. Common stock. Except as provided in this Article Fifth (or
in any supplementary sections thereto) the holders of the common stock
shall exclusively possess all voting power. Each holder of shares of
common stock shall be entitled to one
3
<PAGE>
vote for each share held by such holder, except as to the cumulation of
votes for the election of directors.
Whenever there shall have been paid, or declared and set
aside for payment, to the holders of the outstanding shares of any class
of stock having preference over the common stock as to the payment of
dividends, the full amount of dividends and of sinking fund, retirement
fund or other retirement payments, if any, to which such holders are
respectively entitled in preference to the common stock; then dividends
may be paid on the common stock and on any class or series of stock
entitled to participate therewith as to dividends out of any assets
legally available for the payment of dividends but only when and as
declared by the board of directors. In the event of any liquidation,
dissolution, or winding up of the association, the holders of the common
stock (and the holders of any class or series of stock entitled to
participate with the common stock in the distribution of assets) shall
be entitled to receive, in cash or in kind, the assets of the
association available for distribution remaining after (i) payment or
provision for payment of the association's debts and liabilities; (ii)
distributions or provision for distributions in settlement of its
liquidation account; and (iii) distributions or provisions for
distributions to holders of any class or series of stock having
preference over the common stock in the liquidation, dissolution, or
winding up of the association. Each share of common stock shall have
the same relative rights as and be identical in all respects with all
the other shares of common stock.
B. Preferred stock. The association may provide for one or
more classes of preferred stock, which shall be separately identified,
in supplementary sections to its charter. The shares of any class may
be divided into and issued in series, with each series separately
designated so as to distinguish the shares thereof from the shares of
all other series and classes. The terms of each series shall be set
forth in a supplementary section to the charter. All shares of the
same class shall be identical except as to the following relative rights
and preferences, as to which there may be variations between different
series;
(a) The distinctive serial designation and the number of
shares constituting such series;
(b) The dividend rate or the amount of dividends to be paid on
the shares of such series, whether dividends shall be cumulative and, if
so, from which date the payment date or dates for dividends, and the
participating or other special rights, if any with respect to dividends;
(c) The voting powers, full or limited, if any, of shares of
such series;
(d) Whether the shares of such series shall be redeemable and,
if so, the price(s) at which, and the terms and conditions on which such
shares may be redeemed;
4
<PAGE>
(e) The amount(s) payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution, or winding
up of the association;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund
and the manner of its application, including the price(s) at which such
shares may be redeemed or purchased through the application of such
fund;
(g) Whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes of stock
of the association and, if so, the conversion price(s) or the rate(s) of
exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such
conversion or exchange;
(h) The price or other consideration for which the shares of
such series shall be issued; and
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of
serial preferred stock and whether such shares may be reissued as shares
of the same or any other series of serial preferred stock.
Each share of each series of serial preferred stock shall have
the same relative rights as and be identical in all respects with all
the other shares of the same series.
The Board of Directors shall have authority to divide, by the
adoption of supplementary charter sections, any authorized class of
preferred stock into series, and within the limitations set forth in
this article and the articles of association, fix and determine the
relative rights and preferences of shares of any series so established.
Prior to the issuance of any preferred shares of a series
established by a supplementary charter section adopted by the board of
directors, the association shall file with the Office of the Comptroller
of the Currency a dated copy of that supplementary section of this
charter established and designating the series and fixing and
determining the relative rights and preferences thereof."
In the event of any increase in common stock of this
association by the sale of additional shares thereof, each shareholder
shall be entitled to subscribe to such additional shares of common stock
in proportion to the number of shares of common stock owned by the
shareholder at the time the increase is authorized by the shareholders,
unless another time subsequent to the date of the shareholders' meeting
is specified in a resolution adopted by the shareholders at the time the
increase is authorized. The board of directors shall have the power to
prescribe a reasonable
5
<PAGE>
period of time within which the preemptive rights to subscribe to the
new shares of capital stock must be exercised.
Unless otherwise specified in the articles of
association or required by law, (1) all matters requiring shareholder
action, including amendments to the articles of association must be
approved by shareholders owning a majority voting interest in the
outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Shares of another class or series may be issued as a
share dividend in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to
be issued. Unless otherwise provided by the board of directors, the
record date for determining shareholders entitled to a share dividend
shall be the date the board of directors authorizes the share dividend.
If a shareholder is entitled to fractional shares
pursuant to preemptive rights, a stock dividend, consolidation or
merger, reverse stock split or otherwise, the association may: (a)
issue fractional shares; (b) in lieu of the issuance of fractional
shares, issue scrip or warrants entitling the holder to receive a full
share upon surrendering enough scrip or warrants to equal a full share;
(c) if there is an established and active market in the association's
stock, make reasonable arrangements to provide the shareholder with an
opportunity to realize a fair price through sale of the fraction, or
purchase of the additional fraction required for a full share; (d) remit
the cash equivalent of the fraction to the shareholder; or (e) sell full
shares representing all the fractions at public auction or to the
highest bidder after having solicited and received sealed bids from at
least three licensed stock brokers; and distribute the proceeds pro rata
to shareholders who otherwise would be entitled to the fractional
shares. The holder of a fractional share is entitled to exercise the
rights of shareholders, including the right to vote, to receive
dividends, and to participate in the assets of the association upon
liquidation, in proportion to the fractional interest. The holder of
scrip or warrants is not entitled to any of these rights unless the
scrip or warrants explicitly provide for such rights. The scrip or
warrants may be subject to such additional conditions as: (1) the scrip
or warrants will become void if not exchanged for full shares before a
specified date; and (2) that the shares for which the scrip or warrants
are exchangeable may be sold at the option of the association and the
proceeds paid to scripholders.
The association, at any time and from time to time, may
authorize and issue debt obligations, whether or not subordinated,
without the approval of the shareholders. Obligations classified as
debt, whether or not subordinated, which may be issued by the
association without the approval of shareholders, do not carry voting
rights on any issue, including an increase or decrease in the aggregate
number of the securities, or the exchange or reclassification of all or
part of securities into securities of another class or series.
6
<PAGE>
SIXTH. The board of directors shall appoint one of its
members president of this association, and one of its members
chairperson of the board and shall have the power to appoint one or more
vice presidents, a secretary who shall keep minutes of the directors'
and shareholders' meetings and be responsible for authenticating the
records of the association, and such other officers and employees as may
be required to transact the business of this association. A duly
appointed officer may appoint one or more officers or assistant officers
if authorized by the board of directors in accordance with the bylaws.
SEVENTH. The board of directors shall have the power to:
(1) Define the duties of the officers, employees and agents
of the association.
(2) Delegate the performance of its duties, but not the
responsibility for its duties, to the officers,
employees, and agents of the association.
(3) Fix the compensation and enter into employment contracts
with its officers and employees upon reasonable terms
and conditions consistent with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the
penalty thereof.
(6) Ratify written policies authorized by the association's
management or committees of the board.
(7) Regulate the manner in which any increase or decrease of
the capital of the association shall be made, provided
that nothing herein shall restrict the power of
shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall
raise or lower from two-thirds the percentage required
for shareholder approval to increase or reduce the
capital.
(8) Manage and administer the business and affairs of the
association.
(9) Amend or repeal bylaws, except to the extent that the
articles of association reserve this power in whole or
in part to shareholders.
(10) Make contracts.
(11) Generally to perform all acts that are legal for a board
of directors to perform.
7
<PAGE>
Any and all of these functions may be carried out by
officers, employees, or agents of the association and the delegation of
the performance of the board of directors' duties shall be considered
authorized when the action taken by the officers, employees, or agents
of the association is in accordance with the provisions of the bylaws of
the association, the directives of the board of directors, or the powers
and duties incumbent in any position held by the officers, employees, or
agents.
EIGHTH. The board of directors shall have the power to
change the location of the main office to any other place within the
limits of Atlanta, Georgia, without the approval of the shareholders,
and shall have the power to establish or change the location of any
branch or branches of the association to any other location permitted
under applicable law, without the approval of the shareholders subject
to approval by the Comptroller of the Currency.
NINTH. The corporate existence of this association
shall continue until terminated according to the laws of the United
States.
TENTH. To the fullest extent permitted by the laws of
the state in which the bank's holding company is incorporated, subject
only to the limits of the corporate powers of a national association, a
director of the association shall not be personally liable to the
association, its shareholders or otherwise for monetary damage for
breach of duty as a director. Any repeal or modification of this
article shall be prospective only and shall not adversely affect any
limitation on the personal liability of a director of the association
existing at the time of such repeal or modification.
The association shall indemnify and hold harmless any
director, officer, employee, or agent of the association and its
subsidiaries against all liability and expenses to the fullest extent
permitted by the laws of the state in which the association's holding
company is incorporated, and in addition to the indemnification
otherwise provided by law, the association shall indemnify and hold
harmless such directors, officers, employees, or agents against all
liability and expenses, including reasonable attorney's fees, in any
proceeding (including without limitation a proceeding brought by or on
behalf of the association itself) arising out of their status as
directors, officers, employees, or agents, or their service at the
association's request as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation, association,
partnership, joint venture, trust, employee benefit plan or other
enterprise, or their activities in any such capacity.
The extent of indemnification provided for in this
section and the procedures for implementation of that indemnification
shall be in accordance with the provisions of the bylaws of NationsBank
Corporation. The association may also provide insurance for such
indemnification relating to the directors, officers, employees or
agent's service to the association in accordance with the provisions of
the bylaws of NationsBank Corporation. To the extent that
indemnification or insurance coverage is
8
<PAGE>
prohibited or limited by lawful and binding regulations of the Office of
the Comptroller of the Currency, such regulations shall govern this
indemnification provision.
ELEVENTH. These articles of association may be amended
by the affirmative vote of the holders of a majority of the stock of
this association, unless the vote of the holders of a greater amount of
stock is required by law, and in that case by the vote of the holders of
such greater amount. Although prior approval by the board of directors
is not necessary prior to consideration by shareholders, the
association's board of directors may propose one or more amendments to
the articles of association for submission to the shareholders.
9
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>7
<DESCRIPTION>EXHIBIT 4(P)
<TEXT>
<PAGE>
EXHIBIT 4(p)
<PAGE>
STATEMENT OF DESIGNATION OF
8.50% SERIES H NONCUMULATIVE PREFERRED STOCK
OF
NATIONSBANK, N.A. (SOUTH)
WHEREAS, pursuant to Article 5 of the Articles of
Association of NationsBank, N.A. (South) ("NationsBank South"),
the Board of Directors of NationsBank South is authorized to
divide NationsBank South'sauthorized Preferred Stock ("Preferred
Stock") into series and, within the limitations set forth
therein, fix and determine the relative rights and preferences
of the shares of any series so established; and
WHEREAS, the Board of Directors desires to (i) estab-
lish a series of Preferred Stock, designating such series "8.50%
Series H Noncumulative Preferred Stock," (ii) allocate 600,000
shares of authorized Preferred Stock to the 8.50% Series H
Noncumulative Preferred Stock, and (iii) fix and determine the
relative rights and preferences of the shares of the 8.50%
Series H Noncumulative Preferred Stock;
NOW, THEREFORE, BE IT RESOLVED, that 600,000 of the
10,000,000 shares of Preferred Stock authorized by the Articles
of Association of NationsBank South be, and hereby are, deter-
mined to be and shall be of a series designated as 8.50%
Series H Noncumulative Preferred Stock (hereinafter referred to
as the "Series H Preferred Stock") and that the following is a
statement fixing and determining the variations in the relative
rights and preferences of the Series H Preferred Stock pursuant
to authority vested in the Board of Directors by the Articles of
Association of NationsBank South:
1. Rank.
(a) With respect to dividend rights, the Ser-
ies H Preferred Stock ranks senior to NationsBank South's Common
Stock ("Common Stock"), and junior to NationsBank South's 8.75%
Series 1993A Noncumulative Preferred Stock (the "Series 1993A
Preferred Stock").
(b) With respect to rights upon liquidation,
dissolution or winding-up of NationsBank South, the Series H
Preferred Stock ranks senior to the Common Stock to the extent
of the liquidation preference of the Series H Preferred Stock
and ranks on a parity with the Series 1993A Preferred Stock,
except that NationsBank South may create, authorize, issue or
increase the authorized or issued amount of any class or series
<PAGE>
of any equity securities of NationsBank South, or any warrants,
options, or other rights convertible or exchangeable into any
class or series of any equity securities ranking senior to the
Series H Preferred Stock as to rights upon liquidation, dis-
solution or winding-up of NationsBank South, without the consent
of the holders of the Series H Preferred Stock.
(c) The Series H Preferred Stock will be subject
to the future authorization and issuance of additional series of
Preferred Stock that, as designated by the Board of Directors in
its sole discretion, rank junior to ("Junior Stock"), on a
parity with ("Parity Stock"), or senior to ("Senior Stock") the
Series H Preferred Stock with respect to any one or more of the
following: (i) dividend rights; (ii) rights upon liquidation,
dissolution or winding-up of NationsBank South; (iii) redemption
rights; or (iv) any other rights specified by the Board of
Directors.
2. Dividends.
(a) The holders of the Series H Preferred Stock
shall be entitled to receive, when, as, and if declared by the
Board of Directors out of funds of NationsBank South legally
available for payment, noncumulative cash dividends, payable
quarterly in arrears, at the rate of $2.125 per share per annum.
Declared dividends on the Series H Preferred Stock shall accrue
from the date of issuance which is deemed to be December 1,
1995, or the most recent date on which dividends were payable
and shall be payable quarterly on the first day of March, June,
September and December of each year (each a "Dividend Payment
Date"), commencing March 1, 1996; provided, however, that if
such day is a non-business day, the Dividend Payment Date will
be the next business day. Each declared dividend shall be
payable to holders of record as they appear at the close of
business on the stock books of NationsBank South on such record
dates, not more than 30 calendar days and not less than 10
calendar days preceding the Dividend Payment Date therefor, as
determined by the Board of Directors (each of such dates a
"Record Date"). Quarterly dividend periods (each a "Dividend
Period") shall commence on and include the first day of March,
June, September and December of each year and shall end on and
include the day next preceding the next following Dividend Pay-
ment Date.
(b) The initial dividend will be determined
based upon the number of days from the date of issuance to March
1, 1996. Dividends payable for each full Dividend Period shall
be computed by dividing the annual dividend rate by four.
Dividends payable for any period other than a full Dividend
-2-
<PAGE>
Period shall be computed on the basis of a 365-day year and the
actual number of days elapsed in such period.
(c) Holders of the Series H Preferred Stock
shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of the dividends actually declared
by the Board of Directors. The Series H Preferred Stock shall
not participate in dividends with the Common Stock.
(d) No full dividends shall be declared and paid
or set apart for payment on Preferred Stock of NationsBank South
of any series ranking, as to dividends, on a parity with the
Series H Preferred Stock during any calendar quarter unless full
dividends on the Series H Preferred Stock for the Dividend Pe-
riod ending during such calendar quarter have been or contempo-
raneously are declared and paid or declared and a sum sufficient
for the payment thereof is set apart for such payment. When
dividends are not so paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series H Preferred
Stock and any other Preferred Stock of NationsBank South of any
series ranking as to dividends on a parity with the Series H
Preferred Stock, dividends upon shares of Series H Preferred
Stock and dividends on such other Preferred Stock payable during
such calendar quarter shall be declared pro rata so that the
amount of such dividends so payable per share on the Series H
Preferred Stock and such other Preferred Stock shall in all
cases bear to each other the same ratio that full dividends for
the then-current calendar quarter on the shares of Series H
Preferred Stock (which shall not include any accumulation in
respect of unpaid dividends for prior Dividend Periods) and full
dividends, including required or permitted accumulations, if
any, on shares of such other Preferred Stock, bear to each
other.
(e) If full dividends on the Series H Preferred
Stock have not been declared and paid or set apart for payment
for the Dividend Payment Date falling in the then-current Divi-
dend Period, then, with respect to such then-current Dividend
Period, the following restrictions shall be applicable: (i) no
dividend or distribution (other than in shares of Junior Stock)
may be declared, set aside or paid on any shares of stock of any
series ranking, as to dividends, junior to the Series H
Preferred Stock, (ii) NationsBank South may not repurchase,
redeem or otherwise acquire any shares of its Junior Stock (ex-
cept by conversion into or exchange for Junior Stock) and
(iii) NationsBank South may not, directly or indirectly, repur-
chase, redeem or otherwise acquire (except by conversion into or
exchange for Junior Stock) any shares of any class or series of
equity securities of NationsBank South ranking junior to the
Series H Preferred Stock as to dividend rights.
-3-
<PAGE>
(f) Except as expressly otherwise limited here-
in, and to the extent permitted by applicable law, the Board of
Directors: (i) may declare and NationsBank South may pay or set
apart for payment dividends on any Junior Stock or Parity Stock,
(ii) may make any payment on account of or set apart payment for
a sinking fund or other similar fund or agreement for the
purchase or other acquisition, redemption, retirement or other
requirement of, or with respect to, any Junior Stock or Parity
Stock or any warrants, rights, calls or options exercisable or
exchangeable for or convertible into any Junior Stock or Parity
Stock, (iii) may make any distribution with respect to any Jun-
ior Stock or Parity Stock or any warrants, rights, calls or
options exercisable or exchangeable for or convertible into any
Junior Stock or Parity Stock, whether directly or indirectly,
and whether in cash, obligations or securities of NationsBank
South or other property and (iv) may purchase or otherwise
acquire, redeem or retire any Junior Stock or Parity Stock or
any warrants, rights, calls or options exercisable or
exchangeable for or convertible into any Junior Stock or Parity
Stock; and the holders of the Series H Preferred Stock shall not
be entitled to share or participate therein.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution
or winding-up of NationsBank South, voluntary or involuntary,
the holders of the Series H Preferred Stock will be entitled to
receive out of the assets of NationsBank South available for
distribution to its stockholders, before any distribution of
assets is made to the holders of the Common Stock or any other
shares of capital stock of NationsBank South ranking junior to
the Series H Preferred Stock as to such distribution,
liquidating distributions in the amount of $25.00 per share plus
dividends declared but unpaid for the then-current Dividend
Period (without accumulation of unpaid dividends for prior
Dividend Periods) to the date fixed for such liquidation, dis-
solution or winding-up.
(b) If, upon any voluntary or involuntary liq-
uidation, dissolution or winding-up of NationsBank South, the
amounts payable with respect to the Series H Preferred Stock and
any capital stock ranking on a parity with the Series H
Preferred Stock as to such distributions are not paid in full,
the holders of the Series H Preferred Stock and of such capital
stock will share ratably in any such distribution of assets of
NationsBank South in proportion to the full respective prefer-
ential amounts to which they are entitled (which, in the case of
such capital stock, may include accumulated dividends).
-4-
<PAGE>
(c) After payment of the full amount of the
liquidating distribution to which they are entitled, the holders
of the Series H Preferred Stock will not be entitled to any
further participation in any distribution of assets of Nations-
Bank South. All distributions made with respect to the Series H
Preferred Stock in connection with such liquidation, dissolution
or winding-up of NationsBank South shall be made pro rata to the
holders entitled thereto.
(d) Nothing set forth in this Section 3 shall be
deemed to prevent redemption of the Series H Preferred Stock by
NationsBank South in the manner provided in Section 4 hereof.
Neither the merger nor consolidation of NationsBank South into
or with any other entity or entities, nor the merger or
consolidation of any other entity or entities into or cash with
NationsBank South, nor a sale, transfer, lease or exchange (for
cash, securities or other consideration) of all or any part of
the assets of NationsBank South shall be deemed to be a
liquidation, dissolution or winding up of NationsBank South
within the meaning of this Section 3, unless such sale, trans-
fer, lease or exchange shall be in connection with and intended
to be a plan of complete liquidation, dissolution or winding-up
of NationsBank South.
4. Redemption.
(a) The Series H Preferred Stock is not redeem-
able prior to March 31, 1996. At any time on or after March 31,
1996, NationsBank South shall have the right, at its option and
by action of its Board of Directors, to redeem out of funds of
NationsBank South legally available therefor, in whole at any
time or in part from time to time, the Series H Preferred Stock
upon payment in cash of $25.00 per each share of Series H
Preferred Stock redeemed, plus declared but unpaid dividends for
the then-current Dividend Period to the date fixed for re-
demption (without accumulation of unpaid dividends for prior
Dividend Periods) without interest.
(b) Notice of any redemption specifying the date
fixed for said redemption and the place where the amount to be
paid upon redemption is payable shall be mailed, postage
prepaid, at least 30 but not more than 60 calendar days prior to
said redemption date to the holders of record of the Series H
Preferred Stock to be redeemed, at their respective addresses as
the same shall appear on the books of NationsBank South. If
such notice of redemption shall have been so mailed, and if on
or before the redemption date specified in such notice all funds
necessary for such redemption shall have been set aside by
NationsBank South separate and apart from its other funds, in
trust for the account of the holders of the
-5-
<PAGE>
shares so to be redeemed so as to be and continue to be available
therefor, then, on and after said redemption date, notwithstanding that
any certificate for shares of the Series H Preferred Stock so called for
redemption shall not have been surrendered for cancellation, the shares
represented thereby so called for redemption shall be deemed to be no
longer outstanding, the right to receive dividends thereon shall cease
to accrue, and all rights with respect to such shares of the Series H
Preferred Stock so called for redemption shall forthwith cease and
terminate, except only the right of the holders thereof to receive out
of funds so set aside in trust the amount payable on redemption thereof,
but without interest.
(c) If less than all of the outstanding shares
of the Series H Preferred Stock are to be redeemed, the par-
ticular shares to be redeemed shall be allocated among the
respective holders of Series H Preferred Stock pro rata or by
lot, as the Board of Directors may determine.
(d) Shares of Series H Preferred Stock redeemed
or otherwise purchased or acquired by NationsBank South shall
not be reissued as shares of Series H Preferred Stock but shall
assume the status of authorized but unissued shares of Preferred
Stock of NationsBank South, without designation as to series
until such shares are once more designated as part of a
particular series by the Board of Directors.
(e) Any redemption of the Series H Preferred
Stock shall not be subject to, or conditioned upon, the redemp-
tion of any other series of NationsBank South's Preferred Stock.
5. Voting Rights.
(a) Except as required by applicable law, the
holders of the Series H Preferred Stock will not be entitled to
vote for any purpose.
(b) The right of the holders of the Series H
Preferred Stock to approve an amendment that would adversely
change the specific terms of the Series H Preferred Stock shall
be as provided by applicable law and the Rules and Regulations
of the Office of the Comptroller of the Currency and, unless a
greater vote is required by such law or regulations, such
approval shall be by a vote of the holders of a majority of the
outstanding shares of Series H Preferred Stock; provided, how-
ever, that the creation or issuance of Senior Stock, Parity
Stock or Junior Stock with respect to the payment of dividends
or rights upon liquidation, dissolution or winding-up of
NationsBank South; or a merger, consolidation, reorganization
-6-
<PAGE>
or other business combination in which NationsBank South is not
the surviving entity; or an amendment that increases the number
of authorized shares of Preferred Stock or increases the number
of authorized shares of a series of Preferred Stock constituting
Junior Stock, Parity Stock or Senior Stock, shall not be
considered to be an adverse change to the terms of the Series H
Preferred Stock and shall not require a vote of or the approval
of the holders of the Series H Preferred Stock.
6. Sinking Fund. No sinking fund shall be provided
for the purchase or redemption of shares of the Series H Pre-
ferred Stock.
7. No Other Rights. The shares of Series H Pre-
ferred Stock shall not have any preferences, voting powers or
relative, participating, optional or other special rights, in-
cluding, without limitation, preemptive or conversion rights,
except as set forth above and in NationsBank South's Articles of
Association or as otherwise required by law.
8. Amendments. The Board of Directors reserves the
right to amend these resolutions in accordance with applicable
law.
-7-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4
<SEQUENCE>8
<DESCRIPTION>EXHIBIT 4(Q)
<TEXT>
<PAGE>
EXHIBIT 4(q)
<PAGE>
STATEMENT OF DESIGNATION OF
8.75% SERIES 1993A NONCUMULATIVE PREFERRED STOCK
OF
NATIONSBANK, N.A. (SOUTH)
WHEREAS, pursuant to Article 5 of the Articles of
Association of NationsBank, N.A. (South) ("NationsBank
South"), the Board of Directors of NationsBank South is autho-
rized to divide NationsBank South's authorized Preferred Stock
("Preferred Stock") into series and, within the limitations set
forth therein, fix and determine the relative rights and pref-
erences of the shares of any series so established; and
WHEREAS, the Board of Directors desires to (i) estab-
lish a series of Preferred Stock, designating such series "8.75%
Series 1993A Noncumulative Preferred Stock," (ii) allocate
2,400,000 shares of the authorized Preferred Stock to the 8.75%
Series 1993A Noncumulative Preferred Stock, and (iii) fix and
determine the relative rights and preferences of the shares of
the 8.75% Series 1993A Noncumulative Preferred Stock;
NOW, THEREFORE, BE IT RESOLVED, that 2,400,000 of the
10,000,000 shares of Preferred Stock authorized by the Articles
of Association of NationsBank South be, and hereby are, deter-
mined to be and shall be of a series designated as 8.75% Series
1993A Noncumulative Preferred Stock (hereinafter referred to as
the "Series 1993A Preferred Stock") and that the following is a
statement fixing and determining the variations in the relative
rights and preferences of the Series 1993A Preferred Stock pur-
suant to authority vested in the Board of Directors by the [Ar-
ticles of Association] of NationsBank South:
I. Rank.
A. With respect to dividend rights, the Series 1993A
Preferred Stock ranks senior to NationsBank South's Common Stock
("Common Stock") and to NationsBank South's 8.5% Series H
Noncumulative Preferred Stock (the "Series H Preferred Stock").
B. With respect to rights upon liquidation, dis-
solution or winding-up of NationsBank South, the Series 1993A
Preferred Stock ranks senior to the Common Stock to the extent
of the liquidation preference of the Series 1993A Preferred
Stock and ranks on a parity with the Series H Preferred Stock.
C. The Series 1993A Preferred Stock will be subject
to the future authorization and issuance of additional series
<PAGE>
of Preferred Stock that, as designated by the Board of Directors
in its sole discretion, rank junior to ("Junior Stock"), on a
parity with ("Parity Stock"), or senior to ("Senior Stock") the
Series 1993A Preferred Stock with respect to any one or more of
the following: (i) dividend rights; (ii) rights upon
liquidation, dissolution or winding up of NationsBank South;
(iii) redemption rights; or (iv) any other rights specified by
the Board of Directors; provided, however, that NationsBank
South may not issue any capital stock that constitutes Senior
Stock without the approval of holders of at least two-thirds of
the outstanding shares of Series 1993A Preferred Stock in
accordance with Section V. hereof.
II. Dividends.
A. The holders of the Series 1993A Preferred Stock
shall be entitled to receive, when, as, and if declared by the
Board of Directors out of the funds of NationsBank South legally
available for the payment of noncumulative cash dividends,
payable quarterly in arrears, at the rate of $2.1875 per share
per annum. Declared dividends on the Series 1993A Preferred
Stock shall accrue from the date of issuance which is deemed to
be December 1, 1995, or the most recent date on which dividends
were payable and shall be payable quarterly on the first day of
March, June, September and December of each year (each a
"Dividend Payment Date"), commencing March 1, 1996; provided,
however, that if any such day is a non-business day, the
Dividend Payment Date will be the next business day. Each
declared dividend shall be payable to holders of record as they
appear at the close of business on the stock books of Nations-
Bank South on such record dates, not more than 30 calendar days
and not less than 10 calendar days preceding the Dividend Pay-
ment Date therefor, as determined by the Board of Directors
(each of such dates a "Record Date"). Quarterly dividend peri-
ods (each a "Dividend Period") shall commence on and include the
first day of March, June, September and December of each year
and shall end on and include the day next preceding the next
following Dividend Payment Date.
B. The initial dividend will be determined based
upon the number of days from the date of issuance to March 1,
1996. Dividends payable for each full Dividend Period shall be
computed by dividing the annual dividend rate by four. Divi-
dends payable for any period other than a full Dividend Period
shall be computed on the basis of a 365-day year and the actual
number of days elapsed in such period.
C. Holders of the Series 1993A Preferred Stock shall
not be entitled to any dividends, whether payable in cash,
property or stock, in excess of the dividends actually
-2-
<PAGE>
declared by the Board of Directors. The Series 1993A Preferred Stock
shall not participate in dividends with the Common Stock.
D. No full dividends shall be declared and paid or
set apart for payment on Preferred Stock of NationsBank South of
any series ranking, as to dividends, on a parity with the Series
1993A Preferred Stock during any calendar quarter unless full
dividends on the Series 1993A Preferred Stock for the Dividend
Period ending during such calendar quarter have been or contem-
poraneously are declared and paid or declared and a sum suffi-
cient for the payment thereof is set apart for such payment.
When dividends are not so paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series 1993A
Preferred Stock and any other Preferred Stock of NationsBank
South of any series ranking as to dividends on a parity with the
Series 1993A Preferred Stock, dividends upon shares of Series
1993A Preferred Stock and dividends on such other Preferred
Stock payable during such calendar quarter shall be declared pro
rata so that the amount of such dividends so payable per share
on the Series 1993A Preferred Stock and such other Preferred
Stock shall in all cases bear to each other the same ratio that
full dividends for the then-current calendar quarter on the
shares of Series 1993A Preferred Stock (which shall not include
any accumulation in respect of unpaid dividends for prior
Dividend Periods) and full dividends, including required or
permitted accumulations, if any, on shares of such other
Preferred Stock, bear to each other.
E. If full dividends on the Series 1993A Preferred
Stock have not been declared and paid or set apart for payment
for the Dividend Payment Date falling in the then-current Divi-
dend Period, then, with respect to such then-current Dividend
Period, the following restrictions shall be applicable: (i) no
dividend or distribution (other than in shares of Junior Stock)
may be declared, set aside or paid on any shares of stock of any
series ranking, as to dividends, junior to the Series 1993A
Preferred Stock, (ii) NationsBank South may not repurchase,
redeem or otherwise acquire any shares of its Junior Stock (ex-
cept by conversion into or exchange for Junior Stock) and
(iii) NationsBank South may not, directly or indirectly, repur-
chase, redeem or otherwise acquire (except by conversion into or
exchange for Junior Stock) any shares of any class or series of
equity securities of NationsBank South ranking on a parity with
the Series 1993A Preferred Stock as to dividend rights,
otherwise than pursuant to pro rata offers to purchase or a
concurrent redemption of all, or a pro rata portion, of the
outstanding shares of Series 1993A Preferred Stock and such
other Parity Stock.
-3-
<PAGE>
F. Except as expressly otherwise limited herein, and
to the extent permitted by applicable law, the Board of
Directors: (i) may declare and NationsBank South may pay or set
apart for payment dividends on any Junior Stock or Parity Stock,
(ii) may make any payment on account of or set apart payment for
a sinking fund or other similar fund or agreement for the
purchase or other acquisition, redemption, retirement or other
requirement of, or with respect to, any Junior Stock or Parity
Stock or any warrants, rights, calls or options exercisable or
exchangeable for or convertible into any Junior Stock or Parity
Stock, (iii) may make any distribution with respect to any Jun-
ior Stock or Parity Stock or any warrants, rights, calls or
options exercisable or exchangeable for or convertible into any
Junior Stock or Parity Stock, whether directly or indirectly,
and whether in cash, obligations or securities of NationsBank
South or other property and (iv) may purchase or otherwise
acquire, redeem or retire any Junior Stock or Parity Stock or
any warrants, rights, calls or options exercisable or
exchangeable for or convertible into any Junior Stock or Parity
Stock; and the holders of the Series 1993A Preferred Stock shall
not be entitled to share or participate therein.
III. Liquidation Preference.
A. In the event of any liquidation, dissolution or
winding-up of NationsBank South, voluntary or involuntary, the
holders of the Series 1993A Preferred Stock will be entitled to
receive out of the assets of NationsBank South available for
distribution to its stockholders, before any distribution of
assets is made to the holders of the Common Stock or any other
shares of capital stock of NationsBank South ranking junior to
the Series 1993A Preferred Stock as to such distribution, liq-
uidating distributions in the amount of $25.00 per share plus
dividends declared but unpaid for the then-current Dividend
Period (without accumulation of unpaid dividends for prior Div-
idend Periods) to the date fixed for such liquidation, dis-
solution or winding-up.
B. If, upon any voluntary or involuntary liquida-
tion, dissolution or winding-up of NationsBank South, the
amounts payable with respect to the Series 1993A Preferred Stock
and any capital stock ranking on a parity with the Series 1993A
Preferred Stock (including the Series H Preferred Stock) as to
such distributions are not paid in full, the holders of the
Series 1993A Preferred Stock and of such capital stock will
share ratably in any such distribution of assets of NationsBank
South in proportion to the full respective preferential amounts
to which they are entitled (which, in the case of such capital
stock, may include accumulated dividends).
-4-
<PAGE>
C. After payment of the full amount of the liqui-
dating distribution to which they are entitled, the holders of
the Series 1993A Preferred Stock will not be entitled to any
further participation in any distribution of assets of Nations-
Bank South. All distributions made with respect to the Series
1993A Preferred Stock in connection with such liquidation, dis-
solution or winding-up of NationsBank South shall be made pro
rata to the holders entitled thereto.
D. Nothing set forth in this Section III. shall be
deemed to prevent redemption of the Series 1993A Preferred Stock
by NationsBank South in the manner provided in Section IV.
hereof. Neither the merger nor consolidation of NationsBank
South into or with any other entity or entities, nor the merger
or consolidation of any other entity or entities into or with
NationsBank South, nor a sale, transfer, lease or exchange (for
cash, securities or other consideration) of all or any part of
the assets of NationsBank South shall be deemed to be a dis-
solution, liquidation or winding-up of NationsBank South within
the meaning of this Section III., unless such sale, transfer,
lease or exchange shall be in connection with and intended to be
a plan of complete liquidation, dissolution or winding-up of
NationsBank South.
IV. Redemption.
A. The Series 1993A Preferred Stock is not redeem-
able prior to June 1, 1998. At any time on or after June 1,
1998, NationsBank South shall have the right, at its option and
by action of its Board of Directors, to redeem out of funds of
NationsBank South legally available therefor, in whole at any
time or in part from time to time, the Series 1993A Preferred
Stock upon payment in cash of $25.00 per each share of Series
1993A Preferred Stock redeemed, plus declared but unpaid divi-
dends for the then-current Dividend Period to the date fixed for
redemption (without accumulation of unpaid dividends for prior
Dividend Periods) without interest.
B. Notice of any redemption specifying the date
fixed for said redemption and the place where the amount to be
paid upon redemption is payable shall be mailed, postage pre-
paid, at least 30 days but not more than 60 days prior to said
redemption date to the holders of record of the Series 1993A
Preferred Stock to be redeemed, at their respective addresses as
the same shall appear on the books of NationsBank South. If
such notice of redemption shall have been so mailed, and if on
or before the redemption date specified in such notice all funds
necessary for such redemption shall have been set aside by
NationsBank South separate and apart from its other funds, in
trust for the account of the holders of the shares so to be
-5-
<PAGE>
redeemed so as to be and continue to be available therefor,
then, on and after said redemption date, notwithstanding that
any certificate for shares of the Series 1993A Preferred Stock
so called for redemption shall not have been surrendered for
cancellation, the shares represented thereby so called for re-
demption shall be deemed to be no longer outstanding, the right
to receive dividends thereon shall cease to accrue, and all
rights with respect to such shares of the Series 1993A Preferred
Stock so called for redemption shall forthwith cease and
terminate, except only the right of the holders thereof to re-
ceive out of the funds so set aside in trust the amount payable
on redemption thereof, but without interest.
C. If less than all of the outstanding shares of the
Series 1993A Preferred Stock are to be redeemed, the particular
shares to be redeemed shall be allocated among the respective
holders of Series 1993A Preferred Stock pro rata or by lot, as
the Board of Directors may determine.
D. Shares of Series 1993A Preferred Stock redeemed
or otherwise purchased or acquired by NationsBank South shall
not be reissued as shares of Series 1993A Preferred Stock but
shall assume the status of authorized but unissued shares of
Preferred Stock of NationsBank South, without designation as to
series until such shares are once more designated as part of a
particular series by the Board of Directors.
E. Any redemption of the Series 1993A Preferred
Stock shall not be subject to, or conditioned upon, the redemp-
tion of any other series of NationsBank South's Preferred Stock,
including the Series H Preferred Stock.
V. Voting Rights.
A. Except as described in this Section V. and except
as required by applicable law, the holders of the Series 1993A
Preferred Stock will not be entitled to vote for any purpose.
B. So long as any shares of Series 1993A Preferred
Stock are outstanding, NationsBank South will not, without the
consent of the holders of a least two-thirds of the outstanding
shares of Series 1993A Preferred Stock, voting separately as a
class (together with the holders of shares of Parity Stock, if
any, upon which like voting rights have been conferred and are
exercisable), create, authorize, issue or increase the autho-
rized or issued amount of any class or series of any equity
securities of NationsBank South, or any warrants, options or
other rights convertible or exchangeable into any class or se-
ries of any equity securities of NationsBank South, ranking
-6-
<PAGE>
senior to the Series 1993A Preferred Stock either as to dividend
rights or rights upon liquidation, dissolution or winding-up of
NationsBank South.
C. The right of the holders of the Series 1993A Pre-
ferred Stock to approve an amendment that would adversely change
the specific terms of the Series 1993A Preferred Stock shall be
as provided by applicable law and the Rules and Regulations of
the Office of the Comptroller of the Currency and, unless a
greater vote is required by such law or regulations, such
approval shall be by a vote of the holders of a majority of the
outstanding shares of Series 1993A Preferred Stock; provided,
however, that the creation or issuance of Parity Stock or Junior
Stock with respect to the payment of dividends or rights upon
liquidation, dissolution or winding-up of NationsBank South; or
a merger, consolidation, reorganization or other business combi-
nation in which NationsBank South is not the surviving entity;
or an amendment that increases the number of authorized shares
of Preferred Stock or increases the number of authorized shares
of a series of Preferred Stock constituting Junior Stock or
Parity Stock, shall not be considered to be an adverse change to
the terms of the Series 1993A Preferred Stock and shall not
require a vote of or the approval of the holders of the Series
1993A Preferred Stock.
D. If NationsBank South shall fail to pay the
equivalent of six full quarterly dividends payable on the Series
1993A Preferred Stock, the number of directors of NationsBank
South shall be increased by (i) one, if the number of directors
immediately prior to such increase totals nine or less, or (ii)
two, if the number of directors immediately prior to such
increase totals 10 or more, and the holders of the Series 1993A
Preferred Stock, voting separately as a class (together with the
holders of shares of Parity Stock, if any, upon which parity
voting rights with respect to the repayment of dividends have
been conferred and are exercisable), will be entitled to elect
such additional director or directors to fill such vacancy or
vacancies, as the case may be. The director or directors
elected pursuant to this Paragraph V.D. shall be entitled to one
vote per director on any matter presented to the Board of
Directors of NationsBank South, and otherwise shall be entitled
to the same rights and privileges as all other directors of
NationsBank South. Such right to elect such additional director
or directors shall continue until full dividends have been paid
or declared and set apart for payment for four consecutive
Dividend Periods.
E. Whenever the voting right described in Para-
graph V.D. shall vest, it may be exercised initially either at
a special meeting of holders of the Series 1993A Preferred
-7-
<PAGE>
Stock (and Parity Stock, if any, with parity voting rights) or
at any annual stockholders' meeting, but thereafter it shall be
exercised only at annual stockholders' meetings or in accordance
with Paragraph V.F. Any director who shall have been elected by
the holders of the Series 1993A Preferred Stock (and Parity
Stock, if any, with parity voting rights) pursuant to
Paragraph V.D. shall hold office for a term expiring at the
earlier of (i) the next annual meeting of stockholders or (ii)
the date upon which full dividends on the Series 1993A Preferred
Stock shall have been paid, or declared and set apart for
payment, for four consecutive Dividend Periods, and during such
term such director may be removed at any time, either with or
without cause, by the affirmative vote of the holders of record
of a majority of the outstanding shares of the Series 1993A
Preferred Stock (and Parity Stock, if any, with parity voting
rights) given at a special meeting of such holders called for
such purpose, and any vacancy created by such removal may also
be filled at such meeting. Upon the termination of the voting
right described in Paragraph V.D., the term of office of the
director or directors elected pursuant thereto then in office
shall, without further action, thereupon terminate unless
otherwise required by law. Upon such termination, the number of
directors constituting the Board of Directors of NationsBank
South shall, without further action, be reduced by one or by
two, as the case may be, subject always to the subsequent
increase of the number of directors pursuant to Paragraph V.D.
in the event of the future right to elect directors as provided
therein.
F. Unless otherwise required by law, in the event of
any vacancy occurring among the directors elected pursuant to
Paragraph V.D., the remaining director, if any, may appoint a
successor to hold office for the unexpired term of the director
whose place shall be vacant. If all directors so elected shall
cease to serve as directors before their terms shall expire, or
if only one director is elected as provided by Paragraph V.D.,
the holders of the Series 1993A Preferred Stock (and Parity
Stock, if any, with parity voting rights) then outstanding may,
at a meeting of such holders duly held, elect a successor or
successors to hold office for such unexpired term or terms, as
the case may be.
G. Whenever a meeting of the holders of Series 1993A
Preferred Stock (and Parity Stock, if any, with parity voting
rights) is permitted or required to be held pursuant to this
Section V., such meeting shall be held at the earliest practi-
cable date and the Secretary of NationsBank South shall call
such meeting, providing written notice in accordance with law to
all holders of record of shares entitled to vote at such
meeting, upon the earlier of the following:
-8-
<PAGE>
1. as soon as reasonably practicable following
the occurrence of the event or events permitting or
requiring such meeting hereunder; or
2. within 20 days following receipt by the
Secretary of NationsBank South a written request for such
a meeting, signed by the holders of record of at least 20%
of the shares of Series 1993A Preferred Stock (and Parity
Stock, if any, with parity voting rights) then outstanding.
If such meeting shall not be called by the proper corporate officer
within 20 days after the receipt of such request by the Secretary of
NationsBank South, or within 25 days after the mailing of the same
within the United States of America by registered mail addressed to the
Secretary of NationsBank South at its principal executive office, then
the holders of record of at least 20% of the shares of Series 1993A
Preferred Stock (and Parity Stock, if any, with parity voting rights)
then outstanding may designate one of their number to call such a
meeting at the expense of NationsBank South, and such meeting may be
called by such person in the manner and at the place provided in this
Section V. Any holder so designated to call such meeting shall have
access to the stock books of NationsBank South for the purpose of
causing a meeting of such holders to be so called.
H. Any meeting of the holders of all outstanding
Series 1993A Preferred Stock (and Parity Stock, if any, with
parity voting rights) entitled to vote as a class shall be held
at the place at which the last annual meeting of stockholders
was held or in an accessible location in either of the counties
in which the executive or administrative headquarters of
NationsBank South are located. At such meeting, the presence in
person or by proxy of the holders of a majority of the out-
standing shares entitled to vote at such meeting shall be re-
quired to constitute a quorum; in the absence of a quorum, a
majority of the holders present in person or by proxy shall have
the power to adjourn the meeting from time to time without
notice, other than an announcement at the meeting, until a quo-
rum shall be present.
I. Notwithstanding any provision of this Section V.
to the contrary, no special meeting of the holders of shares of
Series 1993A Preferred Stock shall be required to be called or
held in violation of any law, rule or regulation.
VI. Sinking Fund. No sinking fund shall be provided for
the purchase or redemption of shares of the Series 1993A Pre-
ferred Stock.
-9-
<PAGE>
VII. No Other Rights. The shares of Series 1993A Pre-
ferred Stock shall not have any preferences, voting powers or
relative, participating, optional or other special rights,
including, without limitation, preemptive or conversion rights,
except as set forth above and in NationsBank South's Articles of
Association or as otherwise required by law.
VIII. Amendments. The Board of Directors reserves the
right to amend these resolutions in accordance with applicable
law.
-10-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>9
<DESCRIPTION>EXHIBIT 10(B)
<TEXT>
SECOND AMENDMENT TO
THE NATIONSBANK RETIREMENT SAVINGS PLAN
(as restated effective January 1, 1993)
THIS INSTRUMENT is executed as of the 31st day of December, 1994 by
NATIONSBANK CORPORATION, a North Carolina corporation with its principal office
and place of business in Charlotte, North Carolina, hereinafter referred to as
"NationsBank";
Statement of Purpose
The NationsBank Retirement Savings Plan (the "Plan") was amended and
restated effective January 1, 1993 by Instrument dated December 31, 1992 and
further amended by Instrument dated December 31, 1993. By this Instrument,
NationsBank is amending the Plan to reflect the merger of five defined
contribution plans into the Plan and other matters related to corporate
acquisitions and dispositions. These amendments have been authorized by the
Compensation Committee of the Board of Directors of NationsBank, which
Compensation Committee has the authority to amend the Plan on behalf of all
Participating Employers.
NOW, THEREFORE, for the purposes aforesaid, the Plan, as set forth in
said Instrument dated December 31, 1992, as subsequently amended, is amended as
follows:
1. Section 16.10(d) of the Plan is amended by changing the phrase "PAC
Plan" to "CRT Plan" effective as of January 1, 1994.
2. The following Section 16.11 is added to the Plan
effective as of March 1, 1994:
"SECTION 16.11. MERGER OF THE CORPUS CHRISTI
PLAN.
(a) Merger of the Corpus Christi Plan. The Corpus Christi National Bank
Employee Savings Plan (the "Corpus Christi Plan") shall merge with and into the
Plan effective as of July 1, 1994. In connection therewith and effective as of
that date, the Trust under the Corpus Christi Plan shall merge with and into the
Investment Trust for the Plan, and the assets of the Trust under the Corpus
Christi Plan shall become assets of the Plan. The Committee shall have the duty
and authority to direct the Investment Trustee with respect to the merger and
consolidation of the assets of the various investment funds maintained under the
<PAGE>
Trust of the Corpus Christi Plan on June 30, 1994 with and into the Funds being
maintained by the Investment Trustee under the Investment Trust on or after July
1, 1994 pursuant to Article XII of the Plan.
While the Corpus Christi Plan shall merge into the Plan effective July
1, 1994, from and after March 1, 1994, participants in the Corpus Christi Plan
shall accrue benefits under the Plan in accordance with its terms and provisions
rather than the Corpus Christi Plan. See Section 16.11(c) of the Plan.
(b) Accounts Related to Participation in the
Corpus Christi Plan.
(1) Establishment of Accounts. Effective as of July 1, 1994, the
accounts being maintained for participants in the Corpus Christi Plan on June
30, 1994 shall be combined with other accounts, or maintained as separate
accounts, under the Plan as follows:
(i) Deferral Contributions Accounts. The account maintained under the
Corpus Christi Plan for a Participant who participated in the Corpus Christi
Plan representing he Participant's interest in the Participant's "deferral
contributions" thereunder shall become the Participant's Pre-Tax Employee
Contribution Account under the Plan.
(ii) Creation of Former Corpus Christi Plan Accounts. An Account shall be
established under the Plan for each of the accounts maintained under the Corpus
Christi Plan for a Participant who participated in the Corpus Christi Plan other
than the account described in Section 16.11(b)(1)(i) of the Plan. These
Accounts, which are referred to in the Plan as "Former Corpus Christi Plan
Accounts," correspond to the accounts maintained under the Corpus Christi Plan
representing the Participant's interest (if any) in "matching contributions" and
"rollover contributions" thereunder.
The Committee may from time to time after July 1, 1994 combine a Participant's
Former Corpus Christi Plan Accounts with other Accounts of the Participant to
the extent that the Committee determines that the combination of Accounts is
administratively feasible and permitted by the Act and the Code.
2
<PAGE>
(2) Investment of Accounts. The Accounts representing a Participant's
interest in the Corpus Christi Plan (see Section 16.11(b)(1) of the Plan) shall
be held and invested from time to time in the Funds in accordance with
Participant investment designations pursuant to Section 12.5 of the Plan.
(3) Investment in Participant Loans. If a loan made under the Corpus
Christi Plan to a Participant who participated in the Corpus Christi Plan is
outstanding on July 1, 1994, the promissory note evidencing such loan shall be
held by the Investment Trustee as a segregated investment allocated to and made
solely for the benefit of the Participant's Account(s) that correspond to the
Participant's account(s) under the Corpus Christi Plan that were invested in
such note. The Investment Trustee shall become the successor lender of all such
"earmarked" loans outstanding on July 1, 1994 for all purposes, and the merger
of the Corpus Christi Plan into the Plan shall not affect the terms of the
promissory note or the security for the repayment of the promissory note
evidencing such loan. No new loans shall be made to any Participants on or after
July 1, 1994.
(c) Active Participation in the Plan. The following rules shall apply
for the purpose of determining when persons with "Hours of Service" under the
Corpus Christi Plan before March 1, 1994 for employment with any participating
employer in the Corpus Christi Plan become Participants in the Plan on or after
March 1, 1994:
(i) Prior Participants. With respect to persons who had become
"Participants" in the Corpus Christi Plan by February 28, 1994:
Covered Employee on March 1, 1994. If the person is a Covered
Employee on March 1, 1994, the person shall become a Participant
on that date.
Non-Covered Employee or Former Employee on March 1, 1994. If the
person is not a Covered Employee on March 1, 1994 but one or more
Accounts are established for the person pursuant to Section
16.11(b)(1) of the Plan because of the person's prior Corpus
Christi Plan participation, the person shall become a Participant
on that date for purposes of the investment, administration and
distribution of the Account(s) in accordance with the
3
<PAGE>
provisions of the Plan, but the person shall not be entitled to
otherwise participate in the Plan unless and until the person
subsequently becomes a Covered Employee.
Other situations. In any other case, the person shall become a
Participant if and when the person becomes a Covered Employee
after March 1, 1994.
(ii) Other Employees. A person who had not become a "Participant"
in the Corpus Christi Plan by February 28, 1994 shall become a
Participant when and as provided in Section 3.2(c) of the Plan (but in
no event before March 1, 1994). For purposes of Section 3.2(c), the
person shall be credited with Months of Service for time prior to
NationsBank's acquisition of the participating employer in the Corpus
Christi Plan determined as if the participating employer and its
affiliates and predecessor companies had been Participating Employers
in the Plan.
(d) Vesting in Former Corpus Christi Plan
Accounts; Vesting Service.
(1) Former Corpus Christi Plan Accounts. A Participant's Former Corpus
Christi Plan Account representing the Participant's "rollover contributions" to
the Corpus Christi Plan shall be fully Vested and nonforfeitable. A
Participant's Former Corpus Christi Plan Accounts that correspond to the
accounts that were maintained under the Corpus Christi Plan to represent the
Participant's interest in "matching contributions" thereunder shall be subject
to the vesting schedule set forth in Section 6.4(b)(iii) of the Plan.
(2) Determination of Vesting Service. For purposes of determining the
Vesting Service of a Participant who had become a "Participant" in the Corpus
Christi Plan by February 28, 1994, the Participant's Vesting Service shall be
determined under the applicable provisions of the Plan other than this Section
16.11(d), except that the person shall be credited with Months of Service for
time prior to NationsBank's acquisition of the participating employer in the
Corpus Christi Plan determined as if the participating employer and its
affiliates and predecessor companies had been Participating Employers in the
Plan. In no event, however, shall the Participant's Vesting Service for time
prior to
4
<PAGE>
January 1, 1994 be less than the sum of Amount A and Amount B, where:
Amount A is the Participant's "Years of Service" for vesting purposes under the
Corpus Christi Plan, determined as of December 31, 1993 (expressed as calendar
months); and
Amount B is the Participant's Vesting Service for 1994 determined under the
rules hereinafter set forth. The Participant will be credited with twelve (12)
months of Vesting Service if the Participant completes 1,000 Hours of Service
during 1994. Otherwise, the Participant will be credited with Vesting Service
for 1994 determined under the applicable provisions of the Plan other than this
Section 16.11(d).
For purposes of determining the Vesting Service of a Participant who
had not become a "Participant" in the Corpus Christi Plan by February 28, 1994
but had "Hours of Service" under the Corpus Christi Plan before March 1, 1994
for employment with any participating employer in the Corpus Christi Plan, the
person's Vesting Service shall be determined under the applicable provisions of
the Plan other than this Section 16.11(d), except that the person shall be
credited with Months of Service for time prior to NationsBank's acquisition of
the participating employer in the Corpus Christi Plan determined as if the
participating employer and its affiliates and predecessor companies had been
Participating Employers in the Plan.
(e) Distribution of Former Corpus Christi Plan
Accounts.
(1) General. While a Participant is in Service, Distributions to a
Participant from the Participant's Former Corpus Christi Plan Accounts shall be
determined, to the extent required by the Act and the Code, as if the Corpus
Christi Plan had remained in effect.
Following separation from Service of a Participant, Distributions from
the Participant's Former Corpus Christi Plan Accounts shall be made when and as
provided in Section 7.3 and 7.4 of the Plan. Generally, Sections 7.3 and 7.4
require a single lump sum (of cash and/or shares of NationsBank Common Stock) as
a method of payment to Participants and Beneficiaries and require an immediate
commencement for
5
<PAGE>
Distributions to Beneficiaries. The following additional payment rule, however,
shall apply with respect to certain Beneficiaries of deceased Participants who
participated in the Corpus Christi Plan:
Deferral Election for Certain Beneficiaries. A Beneficiary of a deceased
Participant with Former Corpus Christi Plan Accounts may elect, in accordance
with procedures established by the Committee for such purpose, to defer
Distribution from the deceased Participant's Accounts that are payable to such
Beneficiary (including Accounts that are not Former Corpus Christi Plan
Accounts) until such later date (if any) provided in Section 6.02 of the Corpus
Christi Plan, if the requirements and conditions of said Section 6.02 are
satisfied. In such regard, the Participant must have died before the
commencement of benefits in order for the Beneficiary to elect a deferral.
(2) Benefit Payments in Progress. The merger of the Corpus Christi Plan
into the Plan shall not revoke or suspend any Corpus Christi Plan methods of
payment elected before or in progress on July 1, 1994, and any method of payment
in progress under the Corpus Christi Plan on July 1, 1994 with respect to a
Participant's accounts thereunder shall continue in effect with respect to the
Participant's interest under the Plan in such accounts.
(f) Beneficiary Designations. Any Participant's written beneficiary
designation in effect under the Corpus Christi Plan with respect to the
Participant's accounts thereunder shall not be revoked by reason of the merger
of the Corpus Christi Plan into the Plan. Such designation shall be effective
under the Plan from and after July 1, 1994 as designating the Beneficiary of all
of the Participant's Accounts, including any resulting Former Corpus Christi
Plan Accounts, unless and until the Participant revokes or changes the
designation or the designation otherwise becomes ineffective, in accordance with
the terms and provisions of the Plan."
3. The following Section 16.12 is added to the Plan
effective as of December 8, 1994:
"SECTION 16.12. TEXAS BRANCH EMPLOYEES: 1994.
(a) General. Effective December 8, 1994 (the
"1994 Texas Termination Date"), certain Participants
6
<PAGE>
who were located in the Participating Employers' Texas branch offices known as
the "Chandler" and "Malakoff" branches that were sold to Citizens National Bank
of Henderson, terminated their employment with the Participating Employers as
the result of such sale (the "1994 Texas Affected Participants").
Notwithstanding any provisions of the Plan to the contrary, the provisions of
this Section 16.12 shall control with respect to the 1994 Texas Affected
Participants.
(b) Pre-Tax Employee Contributions. No Pre-Tax Employee Contributions
shall be made for the 1994 Texas Affected Participants with respect to any
payroll periods that begin after the 1994 Texas Termination Date.
(c) Matching Contribution Accounts of 1994 Texas Affected Participants.
The Matching Contribution Accounts of the 1994 Texas Affected Participants shall
be fully vested and nonforfeitable as of the 1994 Texas Termination Date. The
1994 Texas Affected Participants shall not be Participants Eligible for Matching
Contributions for the Plan Year ending December 31, 1994, and in such regard, no
Matching Contributions shall be allocated to their Matching Contribution
Accounts for that Plan Year.
(d) Distribution of Accounts. The 1994 Texas Affected Participants
shall be treated as having separated from Service as of the 1994 Texas
Termination Date for purposes of determining the time and method of the
Distribution of the Accounts pursuant to the Plan."
4. The following Sections 16.13 through 16.15 are added to
the Plan effective as of December 31, 1994:
"SECTION 16.13. MERGER OF THE RHNB PLAN.
(a) Merger of the RHNB Plan. The Rock Hill National Bank Retirement
Savings Plan (the "RHNB Plan") shall merge with and into the Plan effective as
of the close of business on December 31, 1994. In connection therewith and
effective as of that time, the Trust under the RHNB Plan shall merge with and
into the Investment Trust for the Plan, and the assets of the Trust under the
RHNB Plan shall become assets of the Plan. The Committee shall have the duty and
authority to direct the Investment Trustee with respect to the merger and
consolidation of the assets of the various investment funds maintained under the
Trust of the RHNB Plan on December 31, 1994 with and into the Funds being
maintained by the Investment Trustee under the
7
<PAGE>
Investment Trust on or after January 1, 1995 pursuant to Article XII of the
Plan.
(b) Accounts Related to Participation in the RHNB
Plan.
(1) Establishment of Accounts. Effective as of January 1, 1995, the
accounts being maintained for participants in the RHNB Plan on December 31, 1994
shall be combined with other accounts, or maintained as separate accounts, under
the Plan as follows:
(i) Elective Deferral Accounts. For a Participant who participated in
the RHNB Plan, the Participant's "Elective Deferral" account under the RHNB Plan
shall become the Participant's Pre-Tax Employee Contribution Account under the
Plan.
(ii) Creation of Former RHNB Plan Accounts. An Account shall be established
under the Plan for each account maintained under the RHNB Plan for a Participant
who participated in the RHNB Plan other than the Participant's "Elective
Deferral" account. These Accounts, which are referred to in the Plan as "Former
RHNB Plan Accounts," correspond to the accounts maintained under the RHNB Plan
representing the Participant's interest (if any) in "Matching Contributions" and
other employer contributions thereunder (other than "Elective Deferrals") and in
"Rollover Contributions" thereto. (See Section 5.1 of the RHNB Plan.)
The Committee may from time to time after January 1, 1995 combine a
Participant's Former RHNB Plan Accounts with other Accounts of the Participant
to the extent that the Committee determines that the combination of Accounts is
administratively feasible and permitted by
the Act and the Code.
(2) Investment of Accounts. The Accounts representing a Participant's
interest in the RHNB Plan (see Section 16.13(b)(1) of the Plan) shall be held
and invested from time to time in the Funds in accordance with Participant
investment designations pursuant to Section 12.5 of the Plan.
(c) Active Participation in the Plan. The following rules shall apply
for the purpose of determining when persons with "Hours of Service" under the
RHNB Plan before January 1, 1995 for employment
8
<PAGE>
with any participating employer in the RHNB Plan become Participants in the Plan
on or after January 1, 1995:
(i) Prior Participants. With respect to
persons who had become "Participants" in the RHNB
Plan by December 31, 1994:
Covered Employee on January 1, 1995. If the person is a Covered Employee on
January 1, 1995, the person shall become a Participant on that date.
Non-Covered Employee or Former Employee on January 1, 1995. If the person is not
a Covered Employee on January 1, 1995 but one or more Accounts are established
for the person pursuant to Section 16.13(b)(1) of the Plan because of the
person's prior RHNB Plan participation, the person shall become a Participant on
that date for purposes of the investment, administration and distribution of the
Account(s) in accordance with the provisions of the Plan, but the person shall
not be entitled to otherwise participate in the Plan unless and until the person
subsequently becomes a Covered Employee.
Other situations. In any other case, the person shall become a Participant if
and when the person becomes a Covered Employee after January 1, 1995.
(ii) Other Employees. With respect to persons who had not become
"Participants" in the RHNB Plan by December 31, 1994:
Eligible Covered Employee on January 1, 1995. If the person is a Covered
Employee on January 1, 1995 and would have commenced participation in the RHNB
Plan on January 1, 1995 had it not merged into the Plan, the person shall become
a Participant on January 1, 1995.
Other situations. Otherwise, the person shall become a Participant when and as
provided in Section 3.2(c) of the Plan (but in no event before January 1, 1995).
For purposes of Section 3.2(c), the person's Periods of Service and Qualifying
Periods of Severance shall include (without duplication) the following:
9
<PAGE>
The person shall be credited with Months of Service for time prior to
NationsBank's acquisition of the participating employers in the RHNB
Plan determined as if the participating employers and their affiliates
and predecessor companies had been Participating Employers in the Plan.
The person shall be credited with twelve (12) Months of Service for
each completed "Year of Service" (for eligibility purposes) that the
person had under the RHNB Plan as of
December 31, 1994.
If the person had in progress on December 31, 1994 a twelve-month
computation period that would be a "Year of Service" under the RHNB
Plan if the person completed 1,000 Hours of Service within it, the
person shall be credited with twelve (12) Months of Service upon the
completion of such computation period during 1995 if the person had
completed 1,000 "Hours of Service" under the RHNB Plan during the
portion of the computation period that had elapsed by December 31,
1994.
(d) Vesting in Former RHNB Plan Accounts; Vesting
Service.
(1) Former RHNB Plan Accounts. A Participant's Former RHNB Plan Account
representing the Participant's "Rollover Contributions" to the RHNB Plan shall
be fully Vested and nonforfeitable. A Participant's Former RHNB Plan Account
that corresponds to the account that was maintained under the RHNB Plan to
represent the Participant's interest in "Matching Contributions" and other
employer contributions thereunder (other than "Elective Deferrals") shall be
subject to the vesting schedule set forth in Section 6.4(b)(iii) of the Plan.
(2) Determination of Vesting Service. For purposes of determining the
Vesting Service of a Participant who had become a "Participant" in the RHNB Plan
by December 31, 1994, the Participant's Vesting Service shall be (without
duplication) the sum of Amount A and Amount B, where:
10
<PAGE>
Amount A is the Participant's "Years of Service" for vesting purposes under the
RHNB Plan, determined as of December 31, 1994 and expressed as calendar months;
and
Amount B is the Participant's Vesting Service determined under the applicable
provisions of the Plan other than this Section 16.13(d) but excluding for such
purpose any time prior to NationsBank's acquisition of the participating
employers in the RHNB Plan.
For purposes of determining the Vesting Service of a Participant who had not
become a "Participant" in the RHNB Plan by December 31, 1994 but who had "Hours
of Service" under the RHNB Plan before January 1, 1995 for employment with any
participating employer in the RHNB Plan, the person's Vesting Service shall be
determined under the applicable provisions of the Plan other than this Section
16.13(d), except that the person shall be credited with Months of Service for
time prior to NationsBank's acquisition of the participating employers in the
RHNB Plan determined as if the participating employers and their affiliates and
predecessor companies had been Participating Employers in the Plan.
(e) Distribution of Former RHNB Plan Accounts.
(1) General. While a Participant is in Service, Distributions to a
Participant from the Participant's Former RHNB Plan Accounts shall be
determined, to the extent required by the Act and the Code, as if the RHNB Plan
had remained in effect.
Following separation from Service of a Participant who has any Former
RHNB Plan Accounts, Distributions from the Participant's Accounts (including
Accounts that are not Former RHNB Plan Accounts) shall be made either (i) when
and as provided in Section 7.3 and 7.4 of the Plan or (ii) if the total Vested
interest in the Participant's Accounts at the time of Distribution exceeds three
thousand five hundred dollars ($3,500), by any one of the installment or annuity
methods of Distribution provided by the RHNB Plan. See the attached RHNB Plan
Supplement. The Committee shall establish the procedures by which Participants
and Beneficiaries may make their related payment elections.
(2) Benefit Payments in Progress. The merger of the RHNB Plan into the
Plan shall not revoke or suspend any RHNB Plan methods of payment elected before
or in
11
<PAGE>
progress on January 1, 1995, and any method of payment in progress under the
RHNB Plan