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THIRD SUPPLEMENTAL INDENTURE
between
NATIONSBANK CORPORATION
and
THE BANK OF NEW YORK
Dated as of February 3, 1997
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TABLE OF CONTENTS
PAGE
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.......................5
SECTION 2.2 Maturity...............................................5
SECTION 2.3 Form and Payment.......................................6
SECTION 2.4 Global Form............................................6
SECTION 2.5 Interest...............................................8
SECTION 2.6 Notice of Interest Rate...............................11
ARTICLE III
PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment..............................11
SECTION 3.2 Optional Prepayment by Company........................11
SECTION 3.3 No Sinking Fund.......................................12
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period..................12
SECTION 4.2 Notice of Extension...................................13
SECTION 4.3 Limitation of Transactions............................13
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses...................................14
SECTION 5.2 Payment Upon Resignation or Removal...................15
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange................................15
ARTICLE VII
FORM OF NOTE
SECTION 7.1 Form of Note..........................................15
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TABLE OF CONTENTS
PAGE
ARTICLE VIII
ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes..................................25
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture................................25
SECTION 9.2 Trustee Not Responsible for Recitals.....................25
SECTION 9.3 Governing Law............................................25
SECTION 9.4 Separability.............................................26
SECTION 9.5 Counterparts.............................................26
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of February 3,
1997 (the "Third Supplemental Indenture"), between NATIONSBANK CORPORATION, a
North Carolina corporation (the "Company"), and THE BANK OF NEW YORK, as trustee
(the "Trustee") under the Indenture dated as of November 27, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
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 Floating Rate Junior Subordinated Deferrable Interest Notes due
2027 (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 Third Supplemental Indenture;
WHEREAS, under the terms of an Underwriting Agreement dated as
of January 22, 1997 (the "Underwriting Agreement"), among the Company, NB
Capital Trust III (the "Trust") and NationsBank Capital Markets, Inc., Bear,
Stearns & Co. Inc. and Lehman Brothers, Inc., as representatives of the several
Underwriters named therein (the "Underwriters"), the Trust has agreed to sell to
the Underwriters 500,000 Floating Rate Capital Securities, having an aggregate
liquidation amount of $500,000,000, of its Floating Rate Capital Securities (the
"Capital Securities");
WHEREAS, under the terms of a Subscription Agreement dated as
of January 22, 1997 between the Trust and the Company (the "Subscription
Agreement"), the Company has committed to purchase all of the Floating Rate
Common Securities of the Trust (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 gross proceeds from
such offering of Capital Securities, together with the gross proceeds from the
issuance and sale by the Trust to the Company of the Common Securities, in the
purchase of Notes, as a result of which the Trust will initially purchase
$515,500,000 aggregate principal amount of the Notes; and
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WHEREAS, the Company has requested that the Trustee execute
and deliver this Third Supplemental Indenture, and all requirements necessary to
make this Third Supplemental Indenture a valid instrument in accordance with its
terms and to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Third Supplemental Indenture
have been duly authorized in all respects:
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 Third Supplemental Indenture;
(b) a term defined anywhere in this Third 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 Third 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) Clearing Agency; (ii) Delaware
Trustee; (iii) Depositary; (iv) No Recognition Opinion; (v)
Capital Security Certificate; (vi) Property Trustee; and (vii)
Regular Trustee;
(g) the following terms have the meanings given to
them in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth
in Section 2.5.
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"Business Day" with respect to any Note means any day other
than a Saturday or Sunday that (i) is not a day on which banking institutions in
New York, New York, or Charlotte, North Carolina are authorized or required by
law or regulation to be closed and (ii) is a London Banking Day.
"Calculation Agent" means The Bank of New York or any
successor calculation agent under the Calculation Agency Agreement dated as of
January 22, 1997 among the Company, the Trust and The Bank of New York.
"Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the date of issuance of the Capital
Securities, and there is more than an insubstantial risk that the Company will
not be entitled to treat an amount equal to the aggregate liquidation amount of
the Capital Securities as Tier 1 capital (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve Board, as
then in effect and applicable to the Company.
"Compounded Interest" shall have the meaning set forth
in Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of NB Capital Trust III, a Delaware statutory business trust, dated as of
January 22, 1997.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"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 or other manner
specified in the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Note" shall have the meaning set forth in
Section 2.4.
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"Interest Determination Date" for an Interest Payment Period
means that date that is two London Banking Days (as defined herein) preceding
the first day of such Interest Payment Period. The interest rate on the Notes
for each Interest Payment Period will be effective as of the first day of such
Interest Payment Period.
"Interest Payment Period" with respect to a Note means each
successive period from and including an Interest Payment Date with respect to
such Note (or February 3, 1997 in the case of the initial Interest Payment
Period) to, but excluding, the next Interest Payment Date or the Maturity Date,
as the case may be.
"Investment Company Event" means the receipt by the Trust of
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
the Trust is or will be considered an investment company that is required to be
registered under the Investment Company Act of 1940, as amended, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Capital Securities.
"LIBOR" shall have the meaning set forth in Section 2.5
"London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market.
"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, including Compounded Interest and Additional Interest,
if any.
"Maturity Repayment Price" means the price, at the Maturity
Date, equal to the principal amount of, plus accrued interest, if any, on the
Notes.
"Non-Book-Entry Capital Securities" shall have the
meaning set forth in Section 2.4.
"Prepayment Price" shall have the meaning set forth in
Section 3.1.
"Special Event" means a Tax Event, a Capital Treatment
Event or an Investment Company Event.
"Tax Event" means that (i) the Company shall have
received an opinion of a nationally recognized independent tax
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counsel experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Capital Securities, there is more than an insubstantial risk that
interest payable on the Notes is not, or within 90 days of the date thereof,
will not be deductible, in whole or in part, by the Company for United States
federal income tax purposes or (ii) the Regular Trustees have been informed by a
nationally recognized independent tax counsel that a No Recognition Opinion
cannot be delivered. "No Recognition Opinion" means as opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on published revenue rulings of the Internal Revenue Service, to the
effect that the holders of the Capital Securities and Common Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of the dissolution of the Trust and the distribution of the Notes.
"Telerate Page 3750" means the display designated as Page 3750
on the Dow Jones Telerate Service (or such other page as may replace Page 3750
on that service or such other service or services as may be nominated by the
British Bankers Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
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 "Floating Rate Junior Subordinated Deferrable Interest Notes due 2027",
limited in aggregate principal amount to $515,500,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Notes pursuant to Section 2.04 of the Indenture as well as in any
subsequent or supplemental written order of the Company.
SECTION 2.2 Maturity.
The Maturity Date of the Notes is January 15, 2027.
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SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on the Notes issued in certificated form will be payable, the transfer
of such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of any
Notes is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such 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 one or more
fully registered securities representing 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 Regular Trustees. 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 Third 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 Certificate 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
Certificates are presented to the Security Registrar for transfer or reissuance
at which time such Capital Security Certificates will be canceled and a Note,
registered in the name of the holder of the Capital Security Certificate or the
transferee of the holder of such Capital Security Certificate, as the case may
be, with an
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aggregate principal amount equal to the aggregate liquidation amount of the
Capital Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with the
Indenture and this Third Supplemental Indenture. On issue 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.
(b) A Global Note may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(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 for such series 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 for such series 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 II 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
2.07 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.
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SECTION 2.5 Interest.
(a) Each Note will bear interest at a rate per annum equal to
(i) LIBOR plus (ii) 0.55% until the principal hereof is paid or duly made
available for payment. The initial interest rate on the Notes will be (i) LIBOR
in effect on January 30, 1997 plus (ii) 0.55%. The Company will pay interest on
the Notes quarterly in arrears on each January 15, April 15, July 15 and October
15 (each an "Interest Payment Date") commencing on April 15, 1997. Interest on
the Notes will accrue from February 3, 1997 until the principal amount is paid
and will be computed as hereinafter described. Interest payable on the Notes on
any Interest Payment Date or the Maturity Date will include interest accrued
from and including the next preceding Interest Payment Date in respect of which
interest has been paid or duly provided for or, if no interest has been paid,
from February 3, 1997, to but excluding such Interest Payment Date or Maturity
Date, as the case may be. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be paid to the person in whose
name the Notes are registered at the close of business one Business Day prior to
such Interest Payment Date; provided, that interest payable on the Maturity Date
will be payable to the owner of the Notes at such date and provided further that
if the Notes are not in Book-Entry only form, the record date shall be the
January 1, April 1, July 1 and October 1 prior to the relevant Interest Payment
Date. Any such interest not punctually paid or duly provided for shall be
payable as provided in the Indenture.
The interest rate on the Notes will be reset quarterly. The interest
rate on the Notes for each Interest Payment Period will be determined on the
Interest Determination Date for such Interest Payment Period. The interest rate
on the Notes for each Interest Payment Period will be effective as of the first
day of such Interest Payment Period.
LIBOR and the resulting interest rate for each Interest Payment Period
will be determined by the Calculation Agent in accordance with the following
provisions:
LIBOR means a rate of interest calculated in the following order of
priority:
(1) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Interest Determination Date;
(2) if such rate does not appear on Telerate Page 3750
as of 11:00 a.m. (London time) on the related Interest
Determination Date, LIBOR will be the arithmetic mean (if
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necessary rounded upwards to the nearest whole multiple of 0.00001%) of
the rates (expressed as percentages per annum) for Eurodollar deposits
having a three-month maturity that appear on Reuters Monitor Money
Rates Page LIBO ("Reuters Page LIBO") as of 11:00 a.m. (London time) on
such Interest Determination Date;
(3) if such rate does not appear on Reuters Page LIBO as of
11:00 a.m. (London time) on the related Interest Determination Date,
the Calculation Agent will request the principal London offices of four
leading banks in the London interbank market to provide such banks'
offered quotations (expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such Interest
Determination Date. If at least two quotations are provided, LIBOR will
be the arithmetic mean (if necessary rounded upwards to the nearest
whole multiple of 0.00001%) of such quotations;
(4) if fewer than two such quotations are provided as
requested in clause (3) above, the Calculation Agent will request four
major New York City banks to provide such banks' offered quotations
(expressed as percentages per annum) to leading European banks for
loans in Eurodollars having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at least two such
quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of 0.00001%) of
such quotations; and
(5) if fewer than two such quotations are provided as
requested in clause (4) above, LIBOR will be LIBOR as determined on the
previous Interest Determination Date.
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Interest Determination Date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate before 12:00 noon (London time) on such Interest Determination
Date, the corrected rate as so substituted on the applicable page will be the
applicable LIBOR for such Interest Determination Date.
Absent manifest error, the Calculation Agent's determination of LIBOR
and its calculation of the applicable dividend rate for each interest period
will be final and binding.
If any Interest Payment Date for a Note falls on a day that is not a
Business Day, the Interest Payment Date will be the
9
following day that is a Business Day unless such Interest Payment Date is in the
next succeeding calendar month, in which case the Interest Payment Date will be
the immediately preceding day that is a Business Day. If the Maturity Date falls
on a day that is not a Business Day, the payment of principal and interest will
be made on the next Business Day as if it were made on the date such payment was
due and no additional interest will accrue on the amount so payable for the
period from and after the Maturity Date.
The Company has appointed The Bank of New York, as Calculation Agent.
Upon the request of any holder or beneficial holder of the Notes, the
Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate that will become effective at the next Interest
Reset Date. In the absence of manifest error, such determination is binding on
all parties.
Accrued interest on any Junior Subordinated Note will be calculated by
multiplying the principal amount of such Junior Subordinated Note by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factor calculated for each day from and including February 3, 1997, or
from but excluding the last date to which interest has been paid, as the case
may be, to and including the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal) for each such day is
computed by dividing the rate in effect on such day by 360. All percentages
resulting from any calculation of interest on the Junior Subordinated Notes will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (E.G., 5.687665% (or
.05687665) would be rounded to 5.68767% (or .0568767)), and all dollar amounts
used or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
(b) If, at any time while the Property Trustee is the Holder
of any Notes, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other domestic taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and
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the Property Trustee would have received had no such taxes, duties, assessments
or other government charges been imposed.
SECTION 2.6 Notice of Interest Rate.
Upon receipt from the Calculation Agent of a determination of
an interest rate on the Notes, the Company will promptly deliver a copy of such
determination to the Regular Trustees, the Property Trustee and the Trustee.
ARTICLE III
PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment.
If a Special Event has occurred and is continuing prior to
January 15, 2007 the Company shall have the right upon not less than 30 days nor
more than 60 days notice to the Holders of the Notes to prepay the Notes, in
whole but not in part, for cash within 90 days following the occurrence of such
Special Event (the "90 Day Period") at a prepayment price equal to 100% of the
principal amount of the Notes plus accrued and unpaid interest thereon
(including Additional Interest and Compound Interest, if any) to the Redemption
Date (the "Prepayment Price"). The Prepayment Price shall be paid prior to 12:00
noon, New York time, on the date of such repayment or such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Prepayment Price by 10:00 a.m., New York time, on
the date such Prepayment Price is to be paid.
SECTION 3.2 Optional Prepayment by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Fourteen of the Indenture, the Company shall have the
right to prepay the Notes, in whole or in part, at any time and from time to
time, on or after January 15, 2007, at a redemption price equal to Prepayment
Price. Any prepayment pursuant to this paragraph will be made upon not less than
30 days nor more than 60 days notice to the Holder of the Notes, at the
Prepayment Price. If the Notes are only partially prepaid pursuant to this
Section 3.2, the Notes will be prepaid pro rata or by lot or by any other method
utilized by the Trustee; provided, that if at the time of prepayment the Notes
are registered as a Global Note, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Notes held by each Holder of
Note to be prepaid. The Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or at such earlier time as the Company
determines provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Prepayment Price by 10:00
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a.m., New York time, on the date such Prepayment Price is to be
paid.
(b) If a partial prepayment of the Notes would result in the
delisting of the Capital Securities issued by the Trust from any national
securities exchange or other organization on which the Capital Securities are
then listed, the Company shall not be permitted to effect such partial
prepayment and may only prepay the Notes in whole.
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.
------------------------------------
The Company shall have the right, at any time and from time to
time during the term of the Notes, to defer payments of interest by extending
the interest payment period of such Notes for a period not exceeding 20
consecutive quarterly periods (the "Extended Interest Payment Period"), during
which Extended Interest Payment Period no interest shall be due and payable;
provided that no Extended Interest Payment Period may extend beyond the Maturity
Date. To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1, will bear interest thereon at a rate per annum
equal to LIBOR plus 0.55% compounded quarterly for the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Company shall pay all interest accrued and unpaid on the Notes,
including any Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Notes in whose names the
Notes are registered in the Security Register on the first record date after the
end of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such period,
provided that such period together with all such further extensions thereof
shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date of the Notes. Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest then due, the Company may commence
a new Extended Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
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portion of the interest accrued during an Extended Interest
Payment Period.
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 Extended Interest Payment Period,
the Company shall give written notice to the Regular Trustees, the Property
Trustee and the Trustee of its selection of such Extended Interest Payment
Period at least one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) the date on which the Trust is required to give notice of the
record date, or the date on which such Distributions are payable, to any
applicable self-regulatory organization or to holders of the Capital Securities
issued by the Trust, but in any event at least one Business Day before such
record date.
(b) If the Property Trustee is not the only Holder of the
Notes at the time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Notes and the Trustee written notice of
its selection of such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to any applicable self-regulatory organization or to
Holders of the Notes.
(c) The quarterly 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 20
quarterly periods permitted in the maximum Extended Interest Payment Period
permitted under Section
4.1.
SECTION 4.3 Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1 and such Extended Interest Payment Period
is continuing or (ii) there shall have occurred and be continuing any Event of
Default or Nonpayment, as defined in the Indenture, then (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of its capital stock for another class or series of its capital
stock or (iii) the purchase of fractional interests in shares of its capital
stock pursuant to an acquisition or the conversion or
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exchange provisions of such capital stock or security being converted or
exchanged) or make any guarantee payment with respect thereto and (b) the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities (including guarantees)issued
by the Company which rank pari passu with or junior to the Notes.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Notes to the Property Trustee and in connection with the sale of the 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 6.06 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 Securities
(including commissions to the underwriters payable pursuant to the Underwriting
Agreement), 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.
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SECTION 5.2 Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this Third 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 5.6 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Notes are to be issued as a Global Note in connection
with the distribution of the Notes to the holders of the Capital Securities upon
a Dissolution Election, the Company will use its best efforts to list such Notes
on any stock exchanges on which the Capital Securities are then listed.
ARTICLE VII
FORM OF NOTE
SECTION 7.1 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 NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a
Global Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Bank of New York, as Property Trustee of NB
Capital Trust III (the "Trust"). This Note is exchangeable for Notes registered
in the name of a person other than The Bank of New York, as Property Trustee of
NB Capital Trust III or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Note may be registered except in
limited circumstances.
Unless this Note is presented by an authorized representative
of The Bank of New York, 101 Barclay Street, New York, New York to the issuer or
its agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of The Bank of New York, as Property Trustee of NB
Capital Trust III or such other name as requested by an
15
authorized representative of The Bank of New York and any payment hereon is made
to The Bank of New York, as Property Trustee of NB Capital Trust III, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, The Bank of New York, as Property
Trustee of NB Capital Trust III, has an interest herein.]
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A BANK DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING AFFILIATE OF NATIONSBANK CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY AND INVOLVES INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
$_______________ CUSIP No. 638585 AX 7
No._____________ ISIN No. US 638585 AX 76
Common Code No.: 7346972
NATIONSBANK CORPORATION
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST NOTES
DUE 2027
NATIONSBANK CORPORATION, a North Carolina corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________ Dollars
($___________) on January 15, 2027 (the "Maturity Date"), and to pay interest on
said principal sum at a rate per annum equal to (i) LIBOR (as determined on the
reverse hereof) plus (ii) 0.55% until the principal hereof is paid or duly made
available for payment. The initial interest rate on this Note will be (i) LIBOR
in effect on January 30, 1997 plus (ii) 0.55%. The Company will pay interest on
this Note quarterly in arrears on each January 15, April 15, July 15 and October
15 (each an "Interest Payment Date") commencing on April 15, 1997. Interest on
this Note will accrue from February 3, 1997 until the principal amount is paid
and will be computed as hereinafter described. Interest payable on this Note on
any Interest Payment Date or the Maturity Date will include interest accrued
from and including the next preceding Interest Payment Date in respect of which
interest has been paid or duly provided for or, if no interest has been paid,
from February 3, 1997, to but excluding such Interest Payment Date or Maturity
Date, as the case may be. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be paid to the person in which
name this Note (or one or more predecessor Notes evidencing all or a portion of
the same debt as this Note) is registered at the close of business on the
preceding January 1, April 1, July 1, or October 1, as the case
16
may be, prior to such Interest Payment Date, whether or not a Business Day (as
defined herein) (the "Regular Record Date"); provided, that interest payable on
the Maturity Date will be payable to the owner of this Note at such date. Any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture. In the event that any date on which interest is
payable on this Note is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. The interest installment so
payable, and punctually paid or dully provided for, on any Interest Payment date
will, as provided in the Indenture, be paid to the person in whose name this
Note is registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE
INDENTURE THE NOTES ARE NO LONGER REPRESENTED BY A GLOBAL NOTE -- which shall be
the close of business on __________ or __________]. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Note (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 registered Holders of this series of Notes 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 Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Note 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 check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Note is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Note will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Obligations
17
(as defined in the Indenture) and this Note is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Note, 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 Obligations, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Note 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 Note are continued on the reverse side
hereof and such continued 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 in its name by its duly authorized officers.
NATIONSBANK CORPORATION
By: ______________________
Name:_____________________
[Seal] Title:____________________
Attest:
By: ______________________
Name: _____________________
Title: ____________________
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated ______________________
The Bank of New York,
as Trustee
By ______________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of November 27, 1996, duly executed and delivered
between the Company and The Bank of New York, as Trustee (the "Trustee"), as
supplemented by the Third Supplemental Indenture dated as of February 3, 1997
(the "Third Supplemental Indenture"), between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto 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 Notes. By the terms of the
Indenture, the Notes are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Notes is limited in aggregate principal amount as specified in
the Third Supplemental Indenture.
Upon the election of the Company at any time after January 15,
2007 or upon the occurrence and continuation of a Special Event, as defined in
the Indenture, this Note may become due and payable at a prepayment price equal
to 100% of the principal amount of this Note plus accrued and unpaid interest
thereon (including Additional Interest and Compound Interest, if any) to the
Redemption Date (the "Prepayment Price"). Any prepayment pursuant to this
paragraph will be made upon not less than 30 days nor more than 60 days notice,
at the Prepayment Price. If the Notes are only partially prepaid by the Company,
the Notes will be prepaid pro rata or by lot or by any other method utilized by
the Trustee; provided that if, at the time of
19
prepayment, the Notes are registered as a Global Note, the Depositary shall
determine the principal amount of such Notes held by each Note holder to be
prepaid in accordance with its procedures.
The "Interest Payment Period" with respect to this Note is
each successive period from and including an Interest Payment Date with respect
to such Note (or February 3, 1997 in the case of the Initial Interest Payment
Period) to, but excluding, the next Interest Payment Date or the Maturity Date,
as the case may be. The interest rate on this Note will be reset quarterly. The
interest rate on this Note for each Interest Payment Period will be determined
on the Interest Determination Date for such Interest Payment Period. The
"Interest Determination Date" for an Interest Payment Period is two London
Banking Days (as defined below) preceding the first day of such Interest Payment
Period. The interest rate on this Note for each Interest Payment Period will be
effective as of the first day of such Interest Payment Period.
LIBOR and the resulting interest rate for each Interest
Payment Period will be determined by the Calculation Agent (described below) in
accordance with the following provisions:
LIBOR, with respect to an Interest Determination Date, means a
rate of interest calculated in the following order of priority:
(1) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Interest Determination Date;
(2) if such rate does not appear on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Interest Determination Date,
LIBOR will be the arithmetic mean (if necessary rounded upwards to the
nearest whole multiple of 0.00001%) of the rates (expressed as
percentages per annum) for Eurodollar deposits having a three-month
maturity that appear on Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on such Interest
Determination Date;
(3) if such rate does not appear on Reuters Page LIBO as of
11:00 a.m. (London time) on the related Interest Determination Date,
the Calculation Agent will request the principal London offices of four
leading banks in the London interbank market to provide such banks'
offered quotations (expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
20
Interest Determination Date. If at least two quotations are
provided, LIBOR will be the arithmetic mean (if necessary
rounded upwards to the nearest whole multiple of 0.00001%)
of such quotations;
(4) if fewer than two such quotations are provided as
requested in clause (3) above, the Calculation Agent will request four
major New York City banks to provide such banks' offered quotations
(expressed as percentages per annum) to leading European banks for
loans in Eurodollars having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at least two such
quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of 0.00001%) of
such quotations; and
(5) if fewer than two such quotations are provided as
requested in clause (4) above, LIBOR will be LIBOR as determined on the
previous Determination Date.
If any Interest Payment Date for a Note falls on a day that is
not a Business Day, the Interest Payment Date will be the following day that is
a Business Day unless such Interest Payment Date is in the next succeeding
calendar month, in which case the Interest Payment Date will be the immediately
preceding day that is a Business Day. If the Maturity Date falls on a day that
is not a Business Day, the payment of principal and interest will be made on the
next Business Day as if it were made on the date such payment was due and no
additional interest will accrue on the amount so payable for the period form and
after the Maturity Date.
As used herein:
"Business Day" with respect to this Note means any day other
than a Saturday or Sunday that (i) is not a day on which banking institutions in
New York, New York or Charlotte, North Carolina are authorized or required by
law or regulation to be closed and (ii) is a London Banking Day.
"London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market.
"Telerate Page 3750" means the display designated as Page 3750
on the Dow Jones Telerate Service (or such other page as may replace Page 3750
on that service or such other service or services as may be nominated by the
British Bankers Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
21
The Corporation has appointed The Bank of New York as agent to
calculate interest on this Note (in such capacity, the "Calculation Agent").
Upon the request of any holder or beneficial holder of this Note, the
Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate that will become effective at the next Interest
Reset Date. In the absence of manifest error, such determination is binding on
all parties.
Accrued interest on any Junior Subordinated Note will be
calculated by multiplying the principal amount of such Junior Subordinated Note
by an accrued interest factor. Such accrued interest factor will be computed by
adding the interest factor calculated for each day from and including February
3, 1997, or from but excluding the last date to which interest has been paid, as
the case may be, to and including the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal) for each such day is
computed by dividing the rate in effect on such day by 360. All percentages
resulting from any calculation of interest on the Junior Subordinated Notes will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (E.G., 5.687665% (or
.05687665) would be rounded to 5.68767% (or .0568767)), and all dollar amounts
used or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
The interest rate on this Note will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
In the event of prepayment of this Note in part only, a new
Note or Notes of this series for the unrepaid portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such
22
supplemental indenture shall (i) extend the fixed maturity of any Notes of any
series, or reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the Holder of each Note so affected,
or (ii) reduce the aforesaid percentage of Notes, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holders of each Note then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Notes of any series at the time outstanding affected
thereby, on behalf of all of the Holders of the Notes of such series, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note and
of any Note issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note 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 Note at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term
of the Notes and from time to time to defer payment of interest by extending the
interest payment period of such Notes for a period not exceeding 20 consecutive
quarterly periods (an "Extended Interest Payment 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 Notes to the extent that payment
of such interest is enforceable under applicable law); provided that no Extended
Interest Payment Period may last beyond the Maturity Date of the Notes. Before
the termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarterly periods or extend the Maturity
Date of the Notes. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period, subject to the requirements contained in this paragraph.
23
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in the
City and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any paying agent and the Security Registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, 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 corporation, 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.
This Global Note is exchangeable for Notes in definitive form
only under certain limited circumstances set forth in the Indenture. Notes of
this series so issued are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Notes of this series so issued
are exchangeable for a like aggregate principal amount of Notes of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
24
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
ARTICLE VIII
ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes.
Notes in the aggregate principal amount of $515,500,000 may,
upon execution of this Third 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 its Chief Executive Officer, Chief Financial Officer, its President,
or any Vice President or its Treasurer, without any further action by the
Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this Third Supplemental
Indenture, is in all respects ratified and confirmed, and this Third
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 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 Third Supplemental Indenture.
SECTION 9.3 Governing Law.
This Third 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.
25
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this
Third 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 Third
Supplemental Indenture or of the Notes, but this Third 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 9.5 Counterparts.
This Third 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.
26
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed by their authorized respective
officers as of the day and year first above written.
NATIONSBANK CORPORATION
By: /s/ Susan Y. Calton
Name: Susan Y. Calton
Title: Vice President
THE BANK OF NEW YORK
as Trustee
By /s/ Byron Merino
Name: Byron Merino
Title: Assistant Treasurer
27