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Exhibit 4(d)
==============================
FORM OF SECOND SUPPLEMENTAL INDENTURE
between
WACHOVIA CORPORATION
and
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of ____________, 1998
==============================
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TABLE OF CONTENTS
PAGE
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ARTICLE I.
DEFINITIONS
Section 1.1 Definition of Terms............................................ 2
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount............................... 3
Section 2.2 Maturity....................................................... 3
Section 2.3 Form and Payment............................................... 3
Section 2.4 Global Form.................................................... 4
Section 2.5 Interest....................................................... 5
ARTICLE III.
PREPAYMENT OF THE NOTES
Section 3.1 Special Event Prepayment....................................... 6
Section 3.2 Optional Prepayment by Company................................. 6
Section 3.3 No Sinking Fund................................................ 7
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1 Extension of Interest Payment Period........................... 7
Section 4.2 Notice of Extension............................................ 7
Section 4.3 Limitation of Transactions..................................... 8
ARTICLE V.
EXPENSES
Section 5.1 Payment of Expenses............................................ 9
Section 5.2 Payment Upon Resignation or Removal............................ 9
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ARTICLE VI.
FORM OF NOTE
Section 6.1 Form of Note................................................... 10
ARTICLE VII.
ORIGINAL ISSUE OF NOTES
Section 7.1 Original Issue of Notes........................................ 18
ARTICLE VIII.
MISCELLANEOUS
Section 8.1 Ratification of Indenture...................................... 19
Section 8.2 Trustee Not Responsible for Recitals........................... 19
Section 8.3 Governing Law.................................................. 19
Section 8.4 Separability................................................... 19
Section 8.5 Counterparts.................................................. 19
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of __________, 1998 (the
"Second Supplemental Indenture"), between WACHOVIA CORPORATION, a North Carolina
corporation (the "Company"), and THE FIRST NATIONAL BANK OF CHICAGO, as trustee,
(the "Trustee") under the Indenture dated as of January 31, 1997 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company has executed and delivered the Indenture to the
Trustee to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series ("Securities"), including, without
limitation, Securities issued to evidence loans made to the Company of the
proceeds from the issuance from time to time by one or more business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred trust interests
in such Trusts (the "Preferred Securities") and common interests in such Trusts
(the "Common Securities" and, collectively with the Preferred Securities, the
"Trust Securities"), and to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered.
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of its Securities to be known as its
____% Junior Subordinated Deferrable Interest Debentures due ____________, 20__
(the "Notes"), the form and substance of such Notes and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture and this
Second Supplemental Indenture;
WHEREAS, under the terms of an Underwriting Agreement dated as of
___________, 1998 (the "Underwriting Agreement"), among the Company and Wachovia
Capital Trust VI (the "Trust") and the Underwriters named therein (the
"Underwriters"), the Trust has agreed to sell to the Underwriters $____________
aggregate liquidation amount of its Preferred Securities to be known as ____%
Capital Securities ("Capital Securities");
WHEREAS, under the terms of a Subscription Agreement dated as of
_____________, 1998 between the Trust and the Company (the Subscription
Agreement"), the Company has committed to purchase all of the Common Securities
from the Trust which Common Securities represent at least 3% of the capital of
the Trust;
WHEREAS, the Trust proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of Common Securities, in Notes, as a result of which the Trust will initially
purchase $___________ of Notes, and may, upon exercise of the Option, purchase
up to an additional $___________ of Notes (the "Additional Notes"); and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture, and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms
have been performed, and to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, and the execution and delivery of this Second Supplemental Indenture
have been duly authorized in all respects.
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NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii) Delaware Trustee;
(iv) Distribution; (v) Property Trustee; and (vi) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of Wachovia Capital Trust VI, a Delaware statutory business trust, dated as of
______________, 1998.
"Depositary" shall mean The Depository Trust Company, New York,
New York (or any successor thereto).
"Dissolution Election" means that, as a result of the election of
the Company, as Sponsor, the Trust is to be dissolved in accordance with the
Declaration, and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata in accordance
with the Declaration.
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"Extension Period" shall have the meaning set forth in Section
4.1.
"Federal Reserve" shall have the meaning set forth in Section 6.1.
"Global Note" shall have the meaning set forth in Section 2.4.
"Initial Optional Prepayment Date" shall have the meaning set
forth in Section 3.1.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5.
"Interest Rate" shall have the meaning set forth in Section 2.5.
"Maturity Date" means the date on which the Notes mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon.
"Non-Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4.
"Optional Prepayment Price" shall have the meaning set forth in
Section 3.2.
"Special Event Prepayment Price" shall have the meaning set forth
in Section 3.1.
"Trust Securities" has the meaning set forth under the first
recital of this Second Supplemental Indenture.
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "____%
Junior Subordinated Deferrable Interest Debentures due ___________, 20__",
limited in aggregate principal amount to $____________, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Notes pursuant to Section 3.3 of the Indenture.
Section 2.2 Maturity.
The Maturity Date is ____________, 20__.
Section 2.3 Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued in
registered form without interest coupons. Payment of principal of (and premium,
if any) and any interest on the Notes will be made at the office of the Trustee
in The City of New York, except that at the option of the
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Company, payment of any interest may be made (i) except in the case of Global
Notes, by check mailed to the address of the Person entitled thereto as such
address shall appear in the securities register or (ii) by transfer to an
account maintained by the Person entitled thereto as specified in the securities
register, provided that proper transfer instructions have been received by the
Regular Record Date. Payment of any interest on the Notes will be made to the
Person in whose name such Note is registered at the close of business on the
Regular Record Date for such interest, except in the case of defaulted interest,
and interest payable on the Maturity Date of the principal of the Notes shall be
paid to the Person to whom principal is paid. Notwithstanding the foregoing, so
long as the Holder of any Notes is the Property Trustee, the payment of
principal of (and premium, if any) and any interest on the Notes held by the
Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.4 Global Form
(a) In connection with a Dissolution Election,
(i) the Notes in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a Global Note in an aggregate
principal amount equal to the aggregate principal amount of all then outstanding
Notes (a "Global Note"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the Trustee. Upon
any such presentation, the Company shall execute a Global Note in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with the Indenture and this Second Supplemental
Indenture. Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(ii) if any Capital Securities are held in Non-Book-Entry
certificated form, the Notes in certificated form may be presented to the
Trustee by the Property Trustee and any Capital Security in certificated form
which represents Capital Securities other than Capital Securities held by the
Clearing Agency or its nominee ("Non-Book-Entry Capital Securities") will be
deemed to represent beneficial interests in Notes presented to the Trustee by
the Property Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of the Non-Book-Entry Capital Securities until such Capital
Security in certificated form is presented to the Security Registrar for
transfer or reissuance at which time such Capital Security in certificated form
will be canceled and a Note, registered in the name of the holder of the Capital
Security in certificated form or the transferee of the holder of such Capital
Security, as the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Security in certificated form, will
be executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this Second Supplemental
Indenture. On issuance of such Notes, Notes with an equivalent aggregate
principal amount that were presented by the Property Trustee to the Trustee will
be deemed to have been canceled.
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(b) A Global Note may be transferred, in whole but not in part, by
the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article III of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and make
available for delivery the Notes in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note. In
addition, the Company may at any time determine that the Notes shall no longer
be represented by a Global Note. In such event, the Company will execute, and
subject to Section 3.5 of the Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in definitive registered
form without coupons, in authorized denominations, the Global Note shall be
canceled by the Trustee. Such Notes in definitive registered form issued in
exchange for the Global Note shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depositary for delivery to the
Persons in whose names such Securities are so registered.
Section 2.5 Interest.
(a) Each Note will bear interest at an annual rate of ____% (the
"Interest Rate") of the principal amount thereof, payable semi-annually in
arrears (subject to Article IV) on __________ and __________ of each year (each
an "Interest Payment Date"), commencing on _______________, until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the Interest Rate compounded semi-annually to the Person in whose
name such Note or any predecessor Note is registered, at the close of business
on the first day of the month in which the relevant payment date falls.
(b) The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and, for any period of less than a full calendar month, on the basis of
the actual number of days elapsed in such month. In the event that any date on
which principal and premium, if any, or interest on this
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Note is payable is not a Business Day, then payment payable on such date will be
paid on the next succeeding Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if made
on such date.
(c) During such time as the Property Trustee is the Holder of the
Notes, the Company shall pay any additional amounts on the Notes as may be
necessary in order that the amount of Distributions then due and payable by the
Company on the outstanding Notes shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which the Trust has
become subject as a result of a Tax Event ("Additional Sums").
ARTICLE III.
PREPAYMENT OF THE NOTES
Section 3.1 Special Event Prepayment.
If a Special Event shall occur and be continuing, the Company may, at
any time prior to _____________, 20__ (the "Initial Optional Prepayment Date"),
at its option and subject to receipt of prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve, prepay the Notes in whole (but not in part) at any time within 90 days
of the occurrence of such Special Event, at a prepayment price (the "Special
Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount of such Notes or (ii) the sum, as determined by a Quotation Agent, of the
present values of the principal amount and premium payable as part of the
Optional Prepayment Price with respect to an optional redemption of such Notes
on _______________, together with scheduled payments of interest from the
prepayment date to the Initial Optional Prepayment Date, in each case discounted
to the prepayment date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
either case, accrued and unpaid interest thereon to the date of prepayment.
Section 3.2 Optional Prepayment by Company.
Subject to Article Eleven of the Indenture, the Notes will be
prepayable, in whole or in part, at the option of the Company, on or after
________________ (the "Initial Optional Prepayment Date"), subject to the
Company having received prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve, at a
prepayment price (the "Optional Prepayment Price") equal to the percentage of
the outstanding principal amount of the Notes specified in the Note, plus, in
each case, accrued interest thereon to the date of prepayment if redeemed during
the 12 month period beginning ______________ of the years indicated in the Note.
Notice of any prepayment will be mailed at least 30 days but not more
than 60 days before the prepayment date to each Holder of the Notes to be
prepaid at its registered address. Unless the Company defaults in payment of the
prepayment price, on and after the prepayment date interest ceases to accrue on
such Notes called for prepayment.
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Section 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right under the Indenture at any time during the term of
the Notes to defer the payment of interest at any time or from time to time for
a period not exceeding 10 consecutive semi-annual periods with respect to each
deferral period (each, an "Extension Period"), provided that no Extension Period
may extend beyond the Maturity Date. At the end of an Extension Period, the
Company must pay all interest then accrued and unpaid (together with interest
then accrued at the annual rate of ____%, compounded semi-annually, to the
extent permitted by applicable law) that shall be payable to the Holders of the
Notes in whose name the Notes are registered in the Security Registrar. During
an Extension Period, interest will continue to accrue and Holders of Notes (and
holders of the Trust Securities while Trust Securities are outstanding) will be
required to accrue interest income for United States federal income tax purposes
prior to the receipt of cash attributable to such income.
Before the termination of any Extension Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and upon the payment of all amounts then due on the Interest Payment Date, the
Company may elect to commence a new Extension Period, subject to the foregoing
requirements. There is no limitation on the number of times the Company may
elect to begin an Extension Period. No interest shall be due and payable during
an Extension Period, except at the end thereof.
Section 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Notes at the time the Company selects an Extension Period, the Company shall
give written notice to the Property Trustee, Trustee, Administrative Trustees of
its election of such Extension Period at least five Business Days before the
earlier of (i) the date the Distributions on the Trust Securities would have
been payable except for the election to begin or extend such Extension Period or
(ii) the date the Administrative Trustees are required to give notice to any
securities exchange or to holders of Capital Securities of the record date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. The Trustee shall give notice of the
Company's election to begin or extend a new Extension Period to the Holders of
the Capital Securities.
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(b) If the Property Trustee is not the only Holder of the Notes at
the time the Company selects an Extension Period, the Company shall give the
Holders of the Notes and the Trustee written notice of its election of such
Extension Period at least 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Administrative Trustees
are required to give notice to any securities exchange or to holders of Capital
Securities of the record date or the date such Distributions are payable, but in
any event not less than five Business Days prior to such record date.
(c) The semi-annual period in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extension Period permitted under
Section 4.1.
Section 4.3 Limitation of Transactions.
The Company may not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock, (ii) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu with or junior in
right of payment to the Notes or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in right of payment to
the Notes (other than (a) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, common stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee, (d) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f) purchases of common
stock related to the issuance of common stock or rights under any of the
Company's benefit plans for its directors, officers or employees or any of the
Company's dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (A) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default with respect to the Notes and (B) in respect of which the Company shall
not have taken reasonable steps to cure, (ii) if the Notes are held by the
Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee relating to the Capital Securities of the Trust
or (iii) the Company shall have given notice of its election to begin an
Extension Period with respect to the Notes as provided herein and such Extension
Period shall be continuing.
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ARTICLE V.
EXPENSES
Section 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Notes to the
Trust and in connection with the sale of the Trust Securities by the Trust, the
Company, in its capacity as borrower with respect to the Notes, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.7 of the Indenture;
(b) pay all costs and expenses of the Trust, including, but not
limited to, costs and expenses relating to the organization, maintenance and
dissolution of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the underwriters in connection therewith),
the fees and expenses of the Property Trustee and the Delaware Trustee, the
costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets;
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
(e) pay all other fees, expenses, debts and obligations (other
than the Trust Securities) relating to the Trust.
Section 5.2 Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee, unless otherwise stated, the
Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property Trustee, as the
case may be, pursuant to Section 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to the date of such termination, removal or resignation.
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ARTICLE VI.
FORM OF NOTE
Section 6.1 Form of Note.
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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No. $______________
WACHOVIA CORPORATION
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ____________, 20__
Wachovia Corporation, a North Carolina corporation (the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to The First National
Bank of Chicago, not in its individual capacity but solely in its capacity as
Property Trustee, or registered assigns, the principal sum of $_________ Dollars
on _________, 20__ (the "Maturity Date"), unless previously redeemed, and to pay
interest on the outstanding principal amount hereof from __________, 1998 or
from the most recent interest payment date to which interest has been paid or
duly provided for, semi-annually (subject to deferral as set forth herein) in
arrears on ________ and _________ of each year (each date, an "Interest Payment
Date"), commencing on _________, 1998 at the annual rate of ____% (the "Interest
Rate"), until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Interest Rate, compounded semi-annually
from the relevant Interest Payment Date. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months and, for any period less than a full calendar month, the actual
number of days elapsed in such month. In the event that any date on which
principal of, or premium, if any, or interest on this Security is payable is not
a Business Day, then interest payable on such date will be paid on the next
succeeding Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be, (i) in
the case of Securities represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities not represented by one or more Global Securities, the date which is
fifteen days next preceding such Interest Payment Date (whether or not a
Business Day). Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the Holders on such Regular
Record Date and may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date to be fixed by the Trustee for the payment of such Defaulted
Interest, notice whereof shall be given to the Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
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The principal of (and premium, if any) and interest on this Security
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of the Company by
(i) check mailed to the Holder at such address as shall appear in the Security
Register, except in the case of Global Securities or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper written
transfer instructions have been received by the Regular Record Date.
Notwithstanding the foregoing, so long as the Holder of this Security is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Security will be made at such place and to such account as may
be designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Allocable Amounts in respect of Senior Indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
WACHOVIA CORPORATION
By:
-----------------
Name:
Title:
Attest:
By:
--------------------
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
--------------------------
as Trustee
By:
-----------------------
Authorized officer
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(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued in one or more series under and pursuant to an Indenture, dated as of
January 31, 1997 duly executed and delivered between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee") and the Second Supplemental
Indenture, dated _____________ between the Company and the Trustee (together,
the "Indenture"), to which Indenture reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities. This
Security is one of the series designated on the face hereof.
Upon the occurrence and continuation of a Special Event, the Company
shall have the right prior to _________________ (the "Initial Optional
Prepayment Date") to redeem this Security in whole (but not in part) at the
Special Event Prepayment Price. "Special Event Prepayment Price" shall mean,
with respect to any redemption of the Securities of this series prior to the
Initial Optional Prepayment Date following a Special Event, an amount in cash
equal to the greater of (i) 100% of the principal amount to be redeemed or (ii)
the sum, as determined by _______________, of the present values of the
principal amount and premium payable as part of the Optional Prepayment Price
with respect to an optional redemption of such Securities on _______________,
together with scheduled payments of interest from the prepayment date to the
Initial Optional Prepayment Date, in each case discounted to the prepayment date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at ______________, plus, in either case, any accrued and unpaid interest
thereon, including Additional Sums, if any, to the date of prepayment.
In addition, the Company shall have the right to redeem this Security,
in whole or in part, at any time on or after _________, 20__ (an "Optional
Prepayment"), at the Optional Prepayment Price as set forth below (expressed as
percentages of principal to be redeemed) plus accrued and unpaid interest
thereon (including Additional Sums, if any) to the applicable date of prepayment
if redeemed during the 12 month period beginning _____________ of the years
indicated below.
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YEAR PERCENTAGE
---- ----------
2008...................................................... %
2009...................................................... %
2010...................................................... %
2011...................................................... %
2012...................................................... %
2013...................................................... %
2014...................................................... %
2015...................................................... %
2016...................................................... %
2017...................................................... %
2018 and thereafter....................................... 100.000%
The Optional Prepayment Price or the Special Event Prepayment Price, as
the case requires, shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or at such earlier time as the Company determines, provided,
that the Company shall deposit with the Trustee an amount sufficient to pay the
applicable Prepayment Price by 10:00 a.m., New York City time, on the date such
Prepayment Price is to be paid. Any redemption pursuant to this paragraph will
be made upon not less than 30 days nor more than 60 days notice. If the
Securities of this series are only partially redeemed by the Company pursuant to
an Optional Prepayment, the Securities will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided that if, at the time of
redemption, the Securities are registered as a Global Security, the Depositary
shall determine the particular Securities to be redeemed in accordance with its
procedures.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Securities by the
Company shall be subject to the prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), if such approval is then
required under capital guidelines or policies of the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities of this
series may be declared, and upon such
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declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the time and place and at the rate and in the money
herein prescribed.
So long as no Debenture Event of Default (as defined in the Indenture)
has occurred and is continuing, the Company shall have the right, at any time
and from time to time during the term of the Securities of this series, to defer
payments of interest by extending the interest payment period of such Securities
for a period not exceeding 10 consecutive semi-annual periods, including the
first such semi-annual period during such extension period, and not to extend
beyond the Maturity Date of the Securities (an "Extension Period"), at the end
of which period the Company shall pay all interest then accrued and unpaid
together with interest thereon at the rate specified for the Securities
compounded semi-annually (to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extension
Period, the Company may further defer payments of interest by further extending
such Extension Period, provided that such Extension Period, together with all
such previous and further extensions within such Extension Period, shall not
exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Securities of this series. Upon the termination of any such Extension Period and
the payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extension Period, subject to the foregoing
requirements.
The Company has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including any Other
Debentures) that rank pari passu with or junior in right of payment to this
Security or (iii) make
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any guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
with or junior in right of payment to this Security (other than (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) as a result of a reclassification of the Company's capital stock
or the exchange or the conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock, (e)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (f) purchases of common stock related
to the issuance of common stock or rights under any of the Company's benefit
plans for its directors, officers or employees or any of the Company's dividend
reinvestment plans) if at such time (i) there shall have occurred any event of
which the Company has actual knowledge that (A) with the giving of notice or the
lapse of time or both, would constitute an Event of Default with respect to the
Securities of this series and (B) in respect of which the Company shall not have
taken reasonable steps to cure, (ii) if this Security is held by the Trust, the
Company shall be in default with respect to its payment of any obligations under
the Guarantee relating to the Capital Securities of the Trust or (iii) the
Company shall have given notice of its election to begin an Extension Period
with respect to this Security as provided herein and such Extension Period shall
be continuing.
Subject to the prior approval of the Federal Reserve if such approval
is then required under capital guidelines or policies of the Federal Reserve,
the Company will have the right at any time to liquidate the Trust and cause the
Securities of this series to be distributed to the holders of the Trust
Securities in liquidation of the Trust. As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Security is
registrable in the Securities Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained under
Section 10.2 of the Indenture duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized
denominations and of the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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The Securities of this series are issuable only in registered form
without coupons in denominations of $25.00 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder, or and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
ARTICLE VII.
ORIGINAL ISSUE OF NOTES
Section 7.1 Original Issue of Notes.
Notes in the aggregate principal amount of $ _______________ may, upon
execution of this Second Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order of the Company,
signed by the Chief Executive Officer, the President, a Vice Chairman, a Vice
President, the Comptroller, the Group Director of Asset/Liability Management,
the Clerk or an Assistant Clerk of the Company.
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ARTICLE VIII.
MISCELLANEOUS
Section 8.1 Ratification of Indenture.
The Indenture, as supplemented by this Second Supplemental Indenture,
is in all respects ratified and confirmed, and this Second Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
Section 8.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Second Supplemental Indenture.
Section 8.3 Governing Law.
This Second Supplemental Indenture and each Note shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
Section 8.4 Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 8.5 Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their authorized respective
officers as of the day and year first above written.
WACHOVIA CORPORATION
By:
-------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:
-------------------------------
Name:
Title:
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