Exhibit(1)(a)
WACHOVIA CORPORATION
US $4,000,000,000
Senior Global Medium-Term Notes, Series E
Subordinated Global Medium-Term Notes, Series F
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
May__, 2002
FIRST UNION SECURITIES, INC.
One Wachovia Center
Charlotte, North Carolina 28288-0600
AND EACH OF THE AGENTS LISTED
ON SCHEDULE I HERETO
Ladies & Gentlemen:
Wachovia Corporation (formerly named First Union Corporation),
a North Carolina corporation (the "Company"), confirms its agreement with First
Union Securities, Inc., a Delaware corporation, doing business under the trade
name "Wachovia Securities", and each of the agents listed on Schedule I hereto
(each referred to individually as an "Agent" and collectively referred to as the
"Agents") with respect to the issue and sale by the Company of (i) Senior Global
Medium-Term Notes, Series E (the "Senior Notes") and (ii) Subordinated Global
Medium-Term Notes, Series F (the "Subordinated Notes" and, together with the
Senior Notes, the "Notes").
Each Senior Note is to be issued pursuant to the Indenture,
dated as of April 1, 1983, between the Company and JPMorgan Chase Bank (formerly
known as Chemical Bank), as Trustee (the "Senior Trustee"), as amended by
supplemental indentures dated as of May 17, 1986, July 1, 1988 and August 1,
1990, respectively (the "Senior Indenture"), and each Subordinated Note is to be
issued pursuant to the Indenture, dated as of March 15, 1986, between the
Company and Bank One Trust Company, N.A., as successor to Xxxxxx Trust and
Savings Bank (that succeeded The Bank of New York (formerly known as Irving
Trust Company)), as Trustee (the "Subordinated Trustee"), as amended and
supplemented by the Supplemental Indentures dated as of August 1, 1990, November
15, 1992, February 7, 1996 and July 7, 2000, respectively (as so amended and
supplemented, the "Subordinated Indenture" and together with the Senior
Indenture, the "Indentures"). As of the date hereof, the Company has authorized
the issuance and sale of up to U.S. $4,000,000,000 aggregated principal amount
(or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies or units of two or more currencies as the Company shall designate at
the time of issuance) of Notes. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold through or to the Agents pursuant to the terms of
this Agreement.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No. 333-72374) for
the registration of the Notes, under the Securities Act of 1933 (the "1933 Act")
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC, and each of the Senior Indenture and Subordinated Indenture has been
qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included as an exhibit) and the
prospectus constituting a part thereof, and any prospectus or pricing
supplements relating to the Notes including all documents incorporated therein
by reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment of Agents. Subject to the terms and conditions
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stated herein and subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf in those jurisdictions where it is
authorized to do so, the Company hereby appoints each Agent as an agent for the
purpose of soliciting purchases of the Notes from the Company by others.
Whenever the Company agrees to sell Notes directly to an Agent as principal for
resale to others, it will enter into a Terms Agreement (as hereinafter defined)
relating to such sale in accordance with the provisions of Section 3(a) hereof.
No Agent is authorized to appoint sub-agents; however, any Agent may engage the
services of any other broker or dealer in connection with the offer or sale of
the Notes. The appointment of the Agents hereunder is not exclusive and the
Company may from time to time offer Notes for sale otherwise than to or through
an Agent. The Company may appoint one or more other agents for the purpose of
soliciting purchases of the Notes upon the terms of this Agreement by execution
of an Agent Agreement, substantially in the form of Exhibit G-1 hereto, pursuant
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to a Syndicated Terms Agreement, substantially in the form of Exhibit G-2 hereto
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or pursuant to a Terms Agreement, in accordance with Exhibit-A hereto. It is
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understood, however, that if from time to time the Company is approached by a
prospective agent offering to solicit a specific purchase of Notes, the Company
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may enter into an agreement with such agent with respect to such specific
purchase upon such terms as the Company and such agent may agree. Each Agent is
acting in connection with the Notes individually and not collectively or
jointly.
(b) Reasonable Efforts Solicitations. Upon receipt of
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instructions from the Company, each Agent will use its reasonable efforts to
solicit purchases of such principal amount of the Notes as the Company and such
Agent shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time.
(c) Purchases as Principal. The Agents shall not have any
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obligation to purchase Notes from the Company as principal, but the Agents may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. Each Agent and the Company will,
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in connection with the offering of the Notes on behalf of the Company, comply
with the restrictions on the offering of Notes and distribution of documents
relating thereto set forth in Exhibit H hereto or such other restrictions agreed
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to by the Company and such Agent. The Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by such Agent on an agency basis,
other than those offers rejected by the Agent. The Agent shall have the right,
in its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of any Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part. The Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by the Agent and
accepted by the Company. An Agent shall not have any liability to the Company in
the event any such agency purchase is not consummated for any reason other than
as a result of the default by the applicable agent of its obligations hereunder.
If the Company shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Company shall hold the Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company.
(e) Reliance. The Company and the Agents agree that any Notes
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purchased by the Agents shall be purchased, and any Notes the placement of which
an Agent arranges shall be placed, by such Agent in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
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SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Company of an offer
for the purchase of the Notes (whether to an Agent as principal or through an
Agent as agent), as of the date of each delivery of the Notes against payment
therefor (whether to an Agent as principal or through an Agent as agent) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a "Settlement Date"), and as of the times referred to in Section 8(b) hereof
(each of the times referenced above being referred to hereafter as a
"Representation Date"), as follows:
(i) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective and any
Annual Report on Form 10-K is filed by the Company with the SEC and as
of each Representation Date referred to in Section 2(a) hereof, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statement therein not misleading. The Prospectus, as of the date hereof
does not, and as of each Representation Date referred to in Section
2(a) hereof will not, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
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warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by or on behalf of an Agent expressly for use in
connection with the preparation of the Registration Statement or
Prospectus (as of the date hereof all such information so provided by
the Agents is set forth in Schedule II hereto) or to that part of the
Registration Statement which constitutes the Trustees' Statements of
Eligibility (Form T-1s) under the 1939 Act.
(ii) Due Incorporation and Qualification. The Company has
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been duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has
all power and authority (corporate and other) necessary to own or hold
its material properties and to conduct its business substantially in
the manner in which it presently conducts such business.
(iii) Corporate Power and Authority. The Company has all
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corporate power and authority necessary to execute and deliver this
Agreement, the Senior Indenture, the Subordinated Indenture and the
Notes and to perform its obligations hereunder and thereunder.
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(iv) Authorization and Validity of this Agreement, the
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Indentures and the Notes. Each of the Senior Indenture and the
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Subordinated Indenture has been duly authorized and, assuming execution
and delivery by the Senior Trustee and the Subordinated Trustee,
respectively, each of the Senior Indenture and the Subordinated
Indenture is a valid and binding obligation of the Company enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles, and each of the Senior Indenture and the
Subordinated Indenture has been duly qualified under the 1939 Act; the
Notes have been duly authorized and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Senior
Indenture or the Subordinated Indenture, as the case may be, against
payment of the consideration therefor specified in the Prospectus or
pursuant to any Terms Agreement, the Notes will constitute valid and
legally binding obligations of the Company, conform in all material
respects to the description thereof in the Prospectus and be entitled
to the benefits provided by the Senior Indenture or the Subordinated
Indenture, as the case may be.
(v) No Defaults; Regulatory Approvals. The execution, delivery
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and performance by the Company of this Agreement, the Senior Indenture,
the Subordinated Indenture and the Notes and compliance by the Company
with the provisions hereof and thereof and pursuant to any applicable
Terms Agreement will not constitute a breach of, or default under, (i)
the corporate charter or by-laws of the Company, or (ii) any material
agreement, indenture or other instrument relating to indebtedness for
money borrowed to which the Company is a party, or (iii) to the
Company's best knowledge, any law, order, rule, regulation, or decree
of any court, governmental agency or authority located in the United
States having jurisdiction over the Company or any property of the
Company, which, in the case of (ii) or (iii), breach or default would
be reasonably likely to have a material adverse effect on the Company
and its subsidiaries taken as a whole; and no consent, authorization or
order of any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, any Terms Agreement and the Indentures, except such as have
been obtained or will be obtained prior thereto and except such as may
be required under applicable state securities or Blue Sky laws.
(b) Additional Certifications. Any certificate signed by any
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officer of the Company and delivered to the Agents or to counsel for the Agents
in connection with an offering of Notes or the sale of Notes to an Agent as
principal shall be deemed a representation and warranty by the Company to the
Agents as to the matters covered thereby on the date of such certificate and at
each Representation Date referred to in Section 2(a) hereof subsequent thereto.
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SECTION 3. Purchases as Principal; Solicitations as Agents.
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(a) Purchases as Principal. Unless otherwise agreed by an
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Agent and the Company, Notes to be issued by the Company shall be purchased by
the Agent as principal. Such purchases shall be made in accordance with terms
agreed upon by the Agent and the Company with respect to such information (as
applicable) under a separate terms agreement containing the terms set forth in
Exhibit A hereto (which terms shall be agreed upon orally, with written
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confirmation prepared by the Agent and mailed or sent via facsimile transmission
to the Company) (each such separate agreement is herein referred to as a "Terms
Agreement") and, in the case of sales to Agents on a syndicated basis, a
separate terms agreement substantially in the form of Exhibit G-2 hereto (a
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"Syndicated Terms Agreement"). Unless the context otherwise requires, (i) each
reference contained herein to "this Agreement" shall be deemed to include any
applicable Terms Agreement between the Company and an Agent and any applicable
Syndicated Terms Agreement between the Company and the Agents on a syndicated
basis, and (ii) each reference contained herein to any "Terms Agreement" shall
be deemed to include any Syndicated Terms Agreement hereunder. The Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each purchase
of Notes, unless otherwise agreed by the Company and such Agent, shall be at a
discount from the principal amount of each such Note equivalent to the
applicable commission, in immediately available funds, set forth in Exhibit B
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hereto. The amount of such discount, which shall in no case exceed 1.50% of the
principal amount of each such Note, shall be set forth in the applicable Terms
Agreement. The Agent may engage the services of any other broker or dealer in
connection with the resale of the Notes purchased as principal and may allow any
portion of the discount received from the Company in connection with such
purchases to such brokers and dealers. The Terms Agreement with respect to a
purchase by an Agent as principal shall also specify the requirements, if any,
for the stand-off agreement, opinions of counsel, officers' certificates and
comfort letters pursuant to Sections 4(h), 6(a), 6(b) and 6(c), respectively,
hereof; provided, however, that any requirements for the stand-off agreement
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shall be subject to acceptance by the Company. The resale of any Notes acquired
by such Agent as principal shall be subject to all of the applicable selling
restrictions set forth in Exhibit H hereto.
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(b) Solicitations as Agents. On the basis of the
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representations and warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed upon by the Company and an Agent, such
Agent, as an agent of the Company, will use its reasonable efforts to solicit
offers to purchase the Notes to be issued by the Company upon the terms and
conditions set forth herein and in the Prospectus and to consummate any agency
purchase resulting from the acceptance of such an offer by the Company. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and the Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of
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time or permanently. Upon receipt of instructions from the Company, the Agents
will forthwith suspend solicitation of purchases from the Company until such
time as the Company has advised the Agents that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such Agent
as set forth in Exhibit B hereto, or as otherwise agreed by the Company and such
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Agent. The amount of such commission, which shall in no case exceed 1.50% of the
principal amount of each such Note, shall be set forth in the written
confirmation relating to such sale. The Agents may reallow any portion of the
commission payable pursuant hereto to dealers in connection with the offer and
sale of any Notes.
(c) Administrative Procedures. The purchase price, interest
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rate or formula, maturity date, discount or commission amount and other terms of
the Notes (as applicable) specified in Exhibit A hereto shall be agreed upon
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from time to time by written agreement of the Company and the applicable Agent
(the "Procedures") and set forth in the Prospectus to be prepared in connection
with each sale of Notes. The initial Procedures agreed upon by the Agents and
the Company are set forth in Exhibit I hereto. The Agents and the Company agree
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to perform the respective duties and obligations specifically provided to be
performed by the Agents and the Company herein and in the Procedures. The
Company will furnish a copy of the Procedures from time to time in effect to
each Agent, the Senior Trustee, the Subordinated Trustee and any authenticating
agent, paying agent, calculation agent or exchange rate agent.
(d) Delivery. The documents required to be delivered pursuant
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to Section 6 hereof shall be delivered at the office of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date hereof at 10:00 a.m. New
York time, or at such other place and time as the Agents and the Company may
agree upon in writing (the "Closing Time").
(e) Offering and Sale of Notes. The Company and the Agents
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agree that the Notes are to be offered and sold as set forth in the Prospectus.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify
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each Agent (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
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threatening of any proceedings for that purpose. The Company will use its best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof as promptly as practicable.
(b) Notice of Certain Proposed Filings. The Company will not
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file or transmit for filing any additional registration statement with respect
to the registration of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the interest rates of
Notes and similar pricing information related to particular sales of Notes),
unless the Company has furnished each Agent for its review copies of any such
amendment or supplement proposed to be filed or transmitted for filing prior to
filing or transmission for filing, as the case may be.
(c) Copies of the Registration Statement and the Prospectus.
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The Company will deliver to the Agents as many signed and conformed copies of
the Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference in the
Prospectus) as the Agents may reasonably request. The Company will furnish to
the Agents as many copies of the Prospectus (as amended or supplemented) as the
Agents shall reasonably request in connection with sales or solicitations of
offers to purchase the Notes.
(d) Revisions of Prospectus - Material Changes. Except as
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otherwise provided in subsection (i) of this Section 4, if at any time during
the term of this Agreement an event shall occur or condition exist as a result
of which it is necessary to further amend or supplement the Prospectus in order
that the Prospectus will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or if it shall be necessary to amend
or supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, prompt notice
shall be given to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agents, and the Company will (subject to subsection
(b) of this Section 4) promptly prepare and file, or transmit for filing, with
the SEC such amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as the Company reasonably determines
may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements. The Agents
shall, at such time as the Company shall have furnished to the Agents an amended
or supplemented Prospectus in form reasonably satisfactory to the Agents and
their counsel, resume solicitation of offers to purchase the Notes using the
Prospectus so amended and supplemented.
(e) Periodic Financial Information. Except as otherwise
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provided in subsection (i) of this Section 4, on or prior to the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to
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each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall furnish
such information to the Agents.
(f) Earning Statements. The Company will make generally
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available to its security holders and to the Agents as soon as practicable, but
not later than 45 days after the end of the 12-month period beginning at the end
of the fiscal quarter of the Company during which the filing, or transmission
for filing, of the Prospectus pursuant to Rule 424 under the 1933 Act occurs
(except not later than 90 days after the end of such period if such quarter is
the last fiscal quarter), an earnings statement (which need not be audited) of
the Company and its subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the 1933 Act.
(g) Blue Sky Qualifications. The Company will endeavor, in
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cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such States and other jurisdictions of the
United States as the Agents may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be required to take any
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action which would subject it to general or unlimited service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by it of
any notification with respect to the suspension of the qualification of the
Notes for sale in any such State or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(h) Stand-Off Agreement. If required pursuant to the terms of
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a Terms Agreement, between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not, without the
prior consent of the Agent who is party to such Terms Agreement, offer or sell,
or enter into any agreement to sell, any debt securities of the Company (other
than Notes that are to be sold pursuant to such Terms Agreement).
(i) Suspension of Certain Obligations. The Company shall not
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be required to comply with the provisions of subsections (d) or (e) of this
Section 4 during any period from (x) the time that (A) the Agents shall have
suspended solicitation of purchases of the Notes in their capacity as agents
pursuant to a request from the Company and (B) a Prospectus relating to the
Notes is no longer required to be delivered under the 1933 Act to (y) the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed by any Agent or the Company shall subsequently enter into any new
Terms Agreement with any Agent.
(j) Termination of Purchaser Obligations. The Company agrees
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that any person who has agreed to purchase Notes as the result of an offer to
purchase solicited by an Agent has the right, exercisable only prior to such
purchase, to refuse to purchase and pay for such Notes if, on the related
Settlement Date fixed pursuant to the Procedures, any event or
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condition set forth in Section 12(b) hereof shall have occurred and be
continuing on such date (it being understood that the judgment of such person
with respect to the impracticability of such purchase of the Notes shall be
substituted, for purposes of this Section 4(j), for the respective judgment of
such Agent with respect to certain matters referred to in such Section 12(b),
and that such Agent shall have no duty or obligation whatsoever to exercise the
judgment permitted under such Section 12(b) on behalf of any such person).
(k) Listing. With respect to any Notes, upon agreement between
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the Company and an Agent, the Company will make an application for such Notes to
be listed on the Luxembourg Stock Exchange or such other stock exchange as may
be agreed by the Company and such Agent at the time of such agreement.
SECTION 5. Payment of Expenses.
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Whether or not the transactions contemplated hereunder are
consummated or this Agreement or any Terms Agreement is terminated, the Company
agrees to pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement including: (a) the printing, preparation
and delivery of the Registration Statement and the Prospectus and all amendments
and supplements thereto to the Agents and the filing of such documents with the
SEC; (b) the preparation, filing and reproduction of this Agreement; (c) the
preparation, printing, issuance and delivery of the Notes, including any fees
and expenses related to the use of book-entry notes; (d) the fees and
disbursements of the Company's and Agents' counsel and accountants, of the
Senior Trustee and its counsel, of the Subordinated Trustee and its counsel and
of any paying agent, calculation agent or exchange rate agent; (e) any
reasonable advertising and other out-of-pocket expenses of the Agents incurred
with the approval of the Company; (f) the qualification of the Notes under state
securities laws in accordance with the provisions of Section 4(g) hereof,
including the filing fees and the fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey; (g) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.; (h) all fees paid to exchanges in connection with the
listing of the Notes on any agreed stock exchange; and (i) the cost of preparing
and providing any CUSIP or other identification numbers for the Notes.
Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company also agrees to pay all
fees charged by rating agencies for the rating of any of the Notes as well as
the reasonable fees, expenses and disbursements of counsel to the Agents
incurred in connection with the establishment of the program contemplated hereby
and described in the Prospectus and from time to time in connection with the
transactions contemplated hereby and any opinions to be rendered by such counsel
hereunder.
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SECTION 6. Conditions of Agents' Obligations.
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The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of Notes sold
through an Agent as agent, and any obligation of an Agent to purchase Notes
pursuant to any Terms Agreement, will be subject at all times to the accuracy in
all material respects of the representations and warranties contained herein on
the part of the Company and to the accuracy in all material respects of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions hereof, to the performance and observance by the Company of
all covenants and agreements herein contained in all material respects and to
the following additional conditions precedent:
(a) Legal Opinions. On the date hereof and on each Settlement Date
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if so specified in the applicable Terms Agreement, the Agents shall have
received the following legal opinions, dated as of the date hereof or such
Settlement Date, as the case may be, and in form and substance reasonably
satisfactory to the Agents:
(i) Opinion of Company Counsel. The opinion of Xxxx X. Xxxxxxxx,
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Jr., Esq., counsel to the Company, substantially in the form of Exhibit C
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hereto. As to those matters which relate to the Senior Trustee or the
Subordinated Trustee, Xxxx X. Xxxxxxxx, Xx., Esq. may rely upon the
respective certificate or certificates of such trustees, and as to matters
governed by New York law, upon the opinion of Xxxxxxxx & Xxxxxxxx delivered
pursuant to subsection (a)(ii) of this Section 6.
(ii) Opinions of Counsel to the Agents. The opinion of Xxxxxxxx &
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Xxxxxxxx, counsel to the Agents, substantially in the form of Exhibit D
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hereto; the opinion of Xxxxxxxx & Xxxxxxxx regarding certain tax disclosure
contained in the Prospectus. As to matters governed by the laws of North
Carolina, Xxxxxxxx & Xxxxxxxx may rely upon the opinion delivered pursuant
to subsection (a)(i) of this Section 6.
(b) Officer's Certificates. On the date hereof and on each
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Settlement Date, the Agents shall have received a certificate of the President
or an Executive Vice President or a Senior Vice President or the Chief Financial
Officer or the Chief Accounting Officer of the Company satisfactory to the
Agents, substantially in the form of Exhibit E hereto, dated the date hereof or
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such Settlement Date, as the case may be.
(c) Accountant's Comfort Letter. On the date hereof and on each
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Settlement Date if so specified in the applicable Terms Agreement, the Agents
shall have received a letter dated the date hereof or such Settlement Date, as
the case may be, substantially in the form of Exhibit F hereto, from KPMG LLP,
---------
the independent accountants to the Company.
(d) Other Documents. On the date hereof and on each Settlement Date,
---------------
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably request for the purpose of enabling such counsel
to pass upon the
-11-
issuance and sale of the Notes as herein contemplated and related proceedings,
or in order to evidence the accuracy and completeness in all material respects
of any of the representations and warranties, or the fulfillment in all material
respects of any of the conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of the Notes as herein
contemplated shall be reasonably satisfactory in form and substance to the
Agents.
(e) Termination. If any condition specified in this Section 6 shall
-----------
not have been fulfilled in all material respects when and as required to be
fulfilled, this Agreement (or, at the option of the Agent, any applicable Terms
Agreement) may be terminated, insofar as this Agreement or such Terms Agreement
relates to a particular Agent, by such Agent by notice to the Company at any
time prior to the fulfillment of such condition and any such termination shall
be without liability of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in Section 4(f) hereof,
provisions concerning payment of expenses under Section 5 hereof, the indemnity
and contribution agreements set forth in Sections 9 and 10 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery of Section 11 hereof, the termination procedures of Section 12(c)
hereof, the notice provisions of Section 13 hereof, the provisions set forth
under "Parties" of Section 14 hereof and the governing law provisions set forth
under Section 15 hereof shall remain in effect.
SECTION 7. Delivery of and Payment for Notes Sold through an Agent.
-------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to the Agent.
If such failure shall have occurred for any reason other than as a result of the
default by the applicable Agent of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of funds
during the period when the funds were credited to the Company's account.
SECTION 8. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
-----------------------------------------------
by the Company of an offer for the purchase of Notes to be issued by the Company
(whether to an Agent as principal or through the Agent as agent), and each
delivery of such Notes to the Agents, shall be deemed to be an affirmation that
the representations and warranties of the Company contained in this Agreement
and in any certificate theretofore delivered to the Agents pursuant hereto are
true and correct in all material respects at the time of such acceptance or
delivery, as
-12-
the case may be, and with respect to each acceptance an undertaking that such
representations and warranties will be true and correct in all material respects
at the time of delivery by the Company to the purchaser or his agent, or to the
applicable Agent, of such Notes relating to such acceptance or delivery, as the
case may be, as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes and, unless the Agents shall otherwise
reasonably require, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K, unless the Agents shall otherwise
reasonably require) or if such certificate is required pursuant to the terms of
a Terms Agreement, the Company shall promptly furnish or cause to be furnished
to the Agents a certificate dated as of the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment or the
applicable Settlement Date, as the case may be, in form reasonably satisfactory
to the Agents to the effect that the statements contained in the certificate
referred to in Section 6(b) hereof which were last furnished to the Agents are
true and correct in all material respects at the time of such amendment,
supplement, filing or Settlement Date, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 6(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agents shall otherwise reasonably
require, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes) or there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K, unless the Agents shall otherwise reasonably
require), or if such opinion is required pursuant to the terms of a Terms
Agreement, the Company shall promptly furnish or cause to be furnished to the
Agents and to counsel to the Agents a written opinion of Xxxx X. Xxxxxxxx, Xx.,
Esq., counsel to the Company, or other counsel reasonably satisfactory to the
Agents dated the date of filing with the SEC of such supplement or document, the
date of effectiveness of such amendment, or the applicable Settlement Date, as
the case may be, in form reasonably satisfactory to the Agents, of the same
tenor as the opinion referred to in Section 6(a)(i) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion.
-13-
(d) Subsequent Delivery of Comfort Letters. Each time that the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional material financial information or there is filed with the SEC
any document incorporated by reference into the Prospectus which contains
additional material financial information or, if such letter is required
pursuant to a Terms Agreement, the Company shall cause KPMG LLP promptly to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Exhibit F hereto
---------
but modified to relate to the Registration Statement and Prospectus, as amended
and supplemented to the date of such letter, and of the same general tenor as
the portions of the letter referred to in clauses (iii) and (iv) of said Exhibit
-------
F with such changes as may be necessary to reflect changes in the financial
-
statements and other information derived from the accounting records of the
Company.
(e) Listing. In connection with any application to list Notes on the
-------
Luxembourg Stock Exchange or any other stock exchange, the Company will furnish
from time to time any and all documents, instruments, information and
undertakings and publish all advertisements or other material that may be
necessary in order to effect such listing(s) and maintain such listing(s) until
none of such Notes is outstanding or until such time as payment in respect of
principal, premium, if any, and interest in respect of all such Notes has been
duly provided for, whichever is earlier; provided, however, that if the Company
-------- -------
can no longer reasonably maintain such listing(s), it will use its reasonable
best efforts to obtain and maintain the quotation for, or listing of, the Notes
on such other stock exchange or stock exchanges as the Company may decide with
the approval of the Agents.
SECTION 9. Indemnification.
---------------
(a) Indemnification of Agents. The Company agrees to indemnify and
-------------------------
hold harmless each Agent, each of its directors and officers and each person who
controls any Agent within the meaning of either the 1933 Act or the 1934 Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, the 1934 Act or
other Federal or State statutory law or regulation, at common law or otherwise,
as incurred, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement or in any amendment thereof filed prior to the date hereof, or in the
Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto, or in any related preliminary prospectus or preliminary
prospectus or pricing supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and severally agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to
-14-
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Agent specifically
for use in the Prospectus or any supplement thereto or any related preliminary
prospectus or preliminary prospectus or pricing supplement or of the Statement
of Eligibility (Form T-1) under the Trust Indenture Act of the Senior Trustee
and the Subordinated Trustee, and (ii) such indemnity with respect to any
related preliminary prospectus or preliminary prospectus supplement shall not
inure to the benefit of any Agent (or any person controlling such Agent) from
whom the person asserting any such loss, claim, damage or liability purchased
the Notes which are the subject thereof if such person was not sent or given a
copy of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Notes to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission of a material fact
contained in such related preliminary prospectus or preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Indemnification of the Company. Each Agent severally agrees to
------------------------------
indemnify and hold harmless the Company, each of its directors and officers, and
each person who controls the Company within the meaning of either the 1933 Act
or the 1934 Act, to the same extent as the foregoing indemnity from the Company
to each Agent, but only with reference to written information furnished to the
Company by or on behalf of such Agent specifically for use in the Prospectus or
any supplement thereto or any related preliminary prospectus or preliminary
prospectus or pricing supplement. This indemnity agreement will be in addition
to any liability which any Agent may otherwise have.
(c) General. Promptly after receipt by an indemnified party under
-------
Section 9(a) or (b) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under Section 9(a) or
(b). In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
--------
however, that, if the defendants in any such action include both the indemnified
-------
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such
-15-
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under Section 9(a) or (b) for any
legal or other expenses subsequently incurred by such indemnified party (other
than reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate national counsel representing the indemnified parties who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party, or (iv) the counsel chosen by
the indemnifying party to represent the indemnified party would have a conflict
of interest; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
SECTION 10. Contribution.
------------
If the indemnification provided for in Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under Section 9(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof),
as incurred, in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Agent on the other
from the offering of the Notes of the Company to which such loss, claim, damage
or liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under Section
9(c) above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Agents on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of the Notes received by the
Company bear to the total commissions or discounts received by such Agents in
respect thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by or on behalf of the
Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this Section 10 were
-16-
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 10. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 10 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10, no Agent shall be required to contribute any
amount in excess of the amount by which the total public offering price at which
the Notes purchased by or through it were sold exceeds the amount of any damages
which such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of each of the Agents in this
Section 10 to contribute are several in proportion to the respective purchases
made by or through it to which such loss, claim, damage or liability (or action
in respect thereof) relates and are not joint.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of an
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement.
-----------------------------
This Agreement (excluding any Terms Agreement) may be terminated
for any reason, at any time by either the Company or any of the Agents, in each
case as to itself, immediately upon the giving of 30 days' written notice of
such termination to the other parties hereto in accordance with the provisions
of Section 13 hereof.
(b) Termination of Terms Agreement.
------------------------------
An Agent may terminate any Terms Agreement to which it is a party,
immediately upon notice to the Company, at any time prior to the Settlement Date
relating thereto if:
(i) there has been, since the date of such Terms Agreement or
since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the financial
condition or results of operations, or any development reasonably likely to
result in a material adverse change in the financial
-17-
condition or results of operations, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business;
(ii) since the date of any such Terms Agreement, there shall
have occurred (A) any material adverse change in the financial markets
in the United States, or in the particular international financial
markets where the Notes are being offered as contemplated by the
Prospectus and the applicable pricing supplement, or (B) any outbreak
or escalation of hostilities or other national or international
calamity or crisis, in each case, the effect of which shall be such as
to make it, in the reasonable judgment of such Agent, impracticable to
enforce contracts for the sale of the Notes or to proceed with the
offering, sale or delivery of the Notes being offered;
(iii) since the date of any such Terms Agreement, there shall
have occurred, in the reasonable opinion of the relevant Agent, a
change in international financial, political or economic conditions or
currency exchange rates or exchange controls, in each case, the effect
of which shall be such as to make it, in the reasonable judgment of
such Agent, impracticable to proceed with the offering, sale or
delivery of the Notes being offered;
(iv) since the date of any such Terms Agreement, there shall
have occurred a material disruption in commercial banking or securities
settlement or clearance services in the United States or, with respect
to Clearstream or Euroclear, securities settlement or clearance
services in Europe which disruption materially impacts the settlement
or clearance of the Notes being offered;
(v) since the date of any such Terms Agreement, trading in
any securities of the Company shall have been suspended by the SEC or a
national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the SEC or any
other governmental authority, or if a banking moratorium shall have
been declared by federal, New York or North Carolina authorities, or a
banking moratorium shall have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or
currencies in which the Notes subject to such Terms Agreement are
denominated or payable;
(vi) the rating assigned by any nationally recognized
securities rating agency (as described by the SEC for purposes of Rule
436(g)(2) of the 1934 Act regulations) to any debt securities of the
Company as of the date of any Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly
announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading; or
-18-
(vii) there shall have come to such Agent's attention any
facts that would cause such Agent reasonably to believe that the
Prospectus, at the time it was required to be delivered to a purchaser
of Notes, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such
delivery, not misleading.
(c) General.
-------
In the event of any such termination described in Section
12(a) or Section 12(b) hereto, none of the parties will have any liability to
the other parties hereto, except that (i) the Agents shall be entitled to any
commissions earned in accordance with the third paragraph of Section 3(b)
hereof, (ii) if at the time of termination (a) an offer to purchase any of the
Notes has been accepted by the Company but the time of delivery to the purchaser
or his agent of such Notes relating thereto has not occurred, or (b) an Agent
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them, the covenants set forth in Sections 4 and 8 hereof shall
remain in effect until the later of (x) the time at which such Notes are so
resold or delivered, as the case may be, and (y) the time at which a Prospectus
relating to the Notes is no longer required to be delivered under the 1933 Act
and (iii) the covenant set forth in Section 4(f) hereof, the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 9 and 10 hereof, and the provisions of Sections 11, 12(c), 13, 14 and
15 hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under
the terms and provisions of this Agreement shall be in writing, either delivered
by hand, by mail or by telex, telecopier or telegram, and any such notice shall
be effective when received at the address specified below.
If to the Company:
Wachovia Corporation
One Wachovia Center
Charlotte, North Carolina 28288-0630
Attention: Xxxx X. Xxxxxxxx, Xx.
Facsimile Number: (000) 000-0000
-19-
If to First Union Securities, Inc.:
First Union Securities, Inc.
One Wachovia Center
Charlotte, North Carolina 28288-0600
Attention: Xxxxxxx Xxxxxxx
Xxxxxxxxx Number: (000) 000-0000
If to any other Agent: at its notice address(es) specified on
Schedule I hereto
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 9 and 10 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein or therein contained.
This Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase. Notwithstanding the foregoing, the
purchasers referred to in Section 4(j) shall have the rights set forth therein.
SECTION 15. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 16. Counterparts.
------------
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company 16 counterparts hereof,
whereupon this instrument along with all
-20-
counterparts will become a binding agreement between each of the Agents and the
Company in accordance with its terms.
Very truly yours,
WACHOVIA CORPORATION
By:_______________________
Name: Xxxxxx X. Xxxxx
Title: Treasurer
-21-
CONFIRMED AND ACCEPTED,
as of the date first above written
U.S. Agents:
FIRST UNION SECURITIES, INC.
By: ____________________________
Name:
Title:
BARCLAYS CAPITAL INC.
By: ____________________________
Name:
Title:
BEAR XXXXXXX & CO.
By: ____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: ____________________________
Name:
Title:
-22-
XXXXXXX XXXXX & CO.
By: ____________________________
Name:
Title:
XXXXXX & COMPANY
By: ____________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By: ____________________________
Name:
Title:
XXXXXX BROTHERS
By: ____________________________
Name:
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX, INCORPORATED
By: ____________________________
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
-23-
UBS WARBURG LLC
By: ____________________________
Name:
Title:
XXXXXXXX CAPITAL PARTNERS, L.P.
By: ____________________________
Name:
Title:
European Agents:
WACHOVIA SECURITIES INTERNATIONAL LIMITED
By: ____________________________
Name:
Title:
BARCLAYS BANK PLC
By: ____________________________
Name:
Title:
BEAR, XXXXXXX INTERNATIONAL LIMITED
By: ____________________________
Name:
Title:
-24-
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: ____________________________
Name:
Title:
XXXXXXX XXXXX INTERNATIONAL
By: ____________________________
Name:
Title:
XXXXXX & COMPANY
By: ____________________________
Name:
Title:
X.X. XXXXXX SECURITIES LTD.
By: ____________________________
Name:
Title:
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By: ____________________________
Name:
Title:
XXXXXXX XXXXX INTERNATIONAL
By: ____________________________
Name:
Title:
-25-
SALOMON BROTHERS INTERNATIONAL LIMITED
By: ____________________________
Name:
Title:
UBS AG, acting through its business group UBS WARBURG
By: ____________________________
Name:
Title:
XXXXXXXX CAPITAL PARTNERS, L.P.
By: ____________________________
Name:
Title:
-26-
SCHEDULE I
----------
Names and Addresses of Agents
U.S. Agents:
-----------
First Union Securities, Inc.
One Wachovia Center
Charlotte, NC 28288-0600
Attention: Xxxxxxx Xxxxxxx, Vice President
Tel: 000-000-0000
Fax: 000-000-0000
xxxx.xxxxxxx@xxxxxxxx.xxx
Barclays Capital Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Director
Tel: 000-000-0000
Fax: 000-000-0000
xxx.xxxxxxx@xxxxxx.xxx
Bear Xxxxxxx & Co.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Senior Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
xxxxxxxxxxxx@xxxx.xxx
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-3629
Attention: Xxxx Xxxxxxxx, Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
xxxxxxxxx.xxxxxxxx@xxxx.xxx
S-I-1
Xxxxxxx Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx XxXxxxx
Tel: 000-000-0000
Fax: 000-000-0000
xxx.xxxxxxx@xx.xxx
Xxxxxx & Company
00 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
xxxx@xxxxxx.xxx
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Vice President
Tel: 000-000-0000
Fax: 000-000-0000
xxxxx.xxxxxx.xxxxx@xxxxxxxx.xxx
Xxxxxx Brothers
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx XxXxxxxxxx, Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
xxxxxxxx@xxxxxx.xxx
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx, Incorporated
4 World Financial Center
New York, New York 10080
Attention: Xxxxxx Xxxxxx, Vice President
Tel: 000-000-0000
Fax: 000-000-0000
Mobile: 000-000-0000
xxxxxxxx@xxxxxxxx.xx.xxx
S-I-2
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
xxxxx.x.xxxxxx@xxxx.xxx
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Director
Tel: 000-000-0000
Fax: 000-000-0000
xxxxxxx.xxxxx@xxxx.xxx
Xxxxxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxxxxx@xxxxxxxx.xxx
European Agents:
----------------
Wachovia Securities International Limited
0 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Address for notices:
Wachovia Bank NA
000 X Xxxxx Xxxxxx
xx0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx XX
Tel: 000-000-0000
Barclays Bank PLC
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx Xxxxxx X00 0XX
Xxxxxxx
Attention: MTN Dealers
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
xxxxxx@xxxxxx.xxx
Bear, Xxxxxxx International Limited
Xxx Xxxxxx Xxxxxx, X00 0XX, Xxxxxx
Xxxxxxx
Attention: Xxxx Xxxxxx
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
xxxxxxx@xxxx.xxx
Credit Suisse First Boston (Europe) Limited
Xxx Xxxxx Xxxxxx, Xxxxxx Wharf
Attention: Xxxxxxx Xxxxxx
London E14 4QJ
England
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
xxxxxxx.xxxxxx@xxxx.xxx
Xxxxxxx Xxxxx International
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
Xxx.Xxxxxxx@XX.xxx
Xxxxxx & Company
00 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
xxxx@xxxxxx.xxx
X.X. Xxxxxx Securities Ltd.
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Attention: Euro Medium Term Note Desk
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
Xxxxxx Brothers International (Europe)
One Broadgate
London EC2M 7HA
England
Attention: Euro Medium Term Note Desk
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Financial Centre
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: EMTN Trading and Distribution Desk
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
Salomon Brothers International Limited
Citigroup Centre
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: MTN Desk
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
UBS AG, acting through its business group UBS Warburg
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: UBS AG syndicate desk
Fax: 00-00-0000-0000
Tel: 00-00-0000-0000
xxx.xxxxx@xxxx.xxx
Xxxxxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Managing Director
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxxxxx@xxxxxxxx.xxx
S-I-3
SCHEDULE II
-----------
The following information appearing in the Prospectus under the caption
"Plan of Distribution" (and only such information) has been furnished to
the Company by the Agents expressly for use therein:
(1) The sixth, seventh and eighth sentences of the first
paragraph of text relating to resales;
(2) The second and third sentences of the sixth paragraph of
text relating to market making; and
(3) The eleventh paragraph of text relating to stabilization
transactions.
S-2-1
EXHIBIT A
------- -
The following terms and conditions, if applicable, shall be agreed
to by the Agent and the Company in connection with each Terms Agreement (and
unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed to them in the Prospectus):
DESCRIPTION OF THE NOTES
1. Specified Currency and Principal Amount:
2. Senior or Subordinated:
3. Original Issue Date:
4. Stated Maturity Date:
5. Issue Price:
6. (a) Authorized Denomination(s):
(b) Redenomination (Yes/No): [If yes, give details]
7. (a) Series Number:
(b) If forming part of an existing Series (Yes/No): [If yes, give details]
8. Interest Period:
G One Month
G Three Months
G Six Months
G Twelve Months
G Other (Specify Number of Months):
9. Interest Payment Date(s):
10. Record Dates (for Notes with Maturities Greater than One Year):
11. Exchange Rate Agent (Dual Currency Notes):
A-1
12. Default Rate (if other than Interest Rate): % per annum
PROVISIONS RELATING TO INTEREST (IF ANY) PAYABLE
FIXED RATE NOTES
13. Interest Rate: % per annum
14. Day Count Convention:
G 30/360 for the period from _______ to ________
G Actual/360 for the period from ________ to ________
G Actual/Actual (ISMA) for the period from ________ to ________
G Other (specify convention and applicable period):
FLOATING RATE NOTES
15. Interest Rate Determination:
G ISDA Rate
G Reference Rate Determination
16. Calculation Agent, if not First Union National Bank:
17. Maximum Interest Rate: % per annum
18. Minimum Interest Rate: % per annum
19. Day Count Convention:
G 30/360 for the period from _______ to _______
G Actual/360 for the period from ________ to ________
G Actual/Actual (ISMA) for the period from _______ to ________
G Other (specify convention and applicable period):
A-2
20. Business Day Convention:
G Floating Rate Convention
G Following Business Day Convention
G Modified Following Business Day Convention
G Preceding Business Day Convention
G Other (specify):
ISDA RATE
21. Margin: [+/-] % per annum
22. Floating Rate Option:
23. Designated Maturity:
24. Reset Date:
REFERENCE RATE DETERMINATION
25. Initial Interest Rate:
26. Index Maturity:
27. Interest Rate Basis or Bases:
If CMT Rate: Designated CMT Moneyline Telerate Page:
Designated CMT Maturity Index:
If LIBOR: G LIBOR Telerate
G LIBOR Reuters
If EURIBOR: G EURIBOR Telerate
28. Index Currency:
29. Spread: [+/-] % per annum
30. Spread Multiplier:
A-3
31. Initial Interest Reset Date:
32. Interest Reset Period:
33. Interest Reset Dates:
34. Interest Calculation:
G Regular Floating Rate Note
G Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date: % per annum
Fixed Interest Rate:
G Inverse Floating Rate Note: % per annum
Fixed Interest Rate:
PROVISIONS REGARDING REDEMPTION/REPAYMENT
35. Initial Redemption Date:
36. Initial Redemption Percentage:
37. Annual Redemption Percentage Reduction:
38. Holder's Optional Repayment Date(s):
DISCOUNT NOTES (INCLUDING ZERO COUPON NOTES)
39. Discount Note (Yes/No):
If Yes: Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:%
Issue Price:
A-4
INDEXED NOTES
40. Index: [give details]
41. Formula:
42. Agent, if any, responsible for calculating the principal and/or interest
payable:
43. Provisions where calculation by reference to Index and/or Formula is
impossible or impracticable:
DUAL CURRENCY NOTES
44. Dual Currency Notes (Yes/No):
If Yes: Face Amount:
Face Amount Currency:
Optional Payment Currency:
Option Election Dates: [give details]
45. Designated Exchange Rate:
46. Option Value Calculation Agent:
47. Agent, if any, responsible for calculating the principal and/or interest
payable:
INSTALLMENT NOTES
48. Additional provisions relating to Installment Notes:
PARTLY PAID NOTES
49. Additional provisions relating to Partly Paid Notes:
GENERAL PROVISIONS
50. Additional or different Paying Agents:
51. Additional or different Registrars:
52. Additional or different London Issuing Agents:
53. Additional or different Transfer Agents:
A-5
54. "Business Day" definition (if other than as defined in the Prospectus):
55. Additional selling restrictions: [give details]
56. CUSIP:
ISIN:
Common Code:
Other (specify):
57. Details of additional/alternative clearance system approved by the
Company:
58. Notes to be listed (Yes/No):
If Yes, stock exchange(s):
59. Syndicated Issue (Yes/No):
If Yes, names of managers and details of relevant stabilizing
manager, if any:
60. Clearance System(s):
G DTC only
G Euroclear and Clearstream only
G DTC, and Euroclear and Clearstream through DTC
G DTC, Euroclear and Clearstream
G Other:
61. Name(s) of relevant Distribution Agent(s):
62. Other terms or special conditions:
63. Tax considerations:
64. Discount or Commission per Note:
A-6
EXHIBIT B
------- -
Unless otherwise agreed by the Company and an Agent, as
compensation for the services of the Agents hereunder, the Company shall pay the
applicable Agent, on a discount basis, a commission for the sale of each Note of
the Company equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below (it being understood that such commission
shall in no case exceed 1.50% of the principal amount of such Note):
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year ........................ .125
From 1 year to less than 18 months ....................... .150
From 18 months to less than 2 years ...................... .200
From 2 years to less than 3 years ........................ .250
From 3 years to less than 4 years ........................ .350
From 4 years to less than 5 years ........................ .450
From 5 years to less than 6 years ........................ .500
From 6 years to less than 7 years ........................ .550
From 7 years to less than 10 years ....................... .600
From 10 years to less than 15 years ...................... .625
From 15 years to less than 20 years ...................... .700
From 20 years to less than 30 years ...................... .750
30 years and more ........................................ as agreed, up to a
maximum of 1.50%
B-1
EXHIBIT C
------- -
OPINION OF COUNSEL TO WACHOVIA CORPORATION
Pursuant to Section 6(a)(i) (and to the extent required by
Sections 3(a) and 8(c)) of the Distribution Agreement, counsel to the Company
shall furnish to the Agents his opinion, with respect to the Company, to the
effect that:
(i) The Company has been duly incorporated and validly existing
as a corporation in good standing under the laws of the State of North
Carolina.
(ii) The Company has corporate power and authority under the laws
of the State of North Carolina to own its material properties and to
conduct its business substantially as described in the Prospectus; the
Company has all corporate power and authority necessary to execute and
deliver the Distribution Agreement, the Senior Indenture, the
Subordinated Indenture and the Notes to be issued by the Company, and
to perform its obligations hereunder and thereunder.
(iii) The Distribution Agreement has been duly authorized, executed
and delivered by the Company.
(iv) Each of the Senior Indenture and the Subordinated Indenture
has been duly authorized, executed and delivered by the Company, has
been duly qualified under the 1939 Act and (assuming the Senior
Indenture and the Subordinated Indenture have been duly authorized,
executed and delivered by the Senior Trustee and the Subordinated
Trustee, respectively) constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and
except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units
or payments outside the United States.
(v) The Notes have been duly authorized by the Company and, when
duly completed, executed, authenticated, issued and delivered against
payment of the consideration therefor in accordance with the provisions
of the Distribution Agreement and the Senior Indenture or the
Subordinated Indenture, as the case may be, such Notes will be valid
and legally binding obligations of the Company, entitled to the
benefits of the Senior Indenture or the Subordinated Indenture, as the
case may be, and enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to, or
affecting, creditors' rights and to general equity principles; and the
Notes, the Senior Indenture and the Subordinated Indenture conform in
all material respects to the descriptions thereof in the Prospectus.
C-1
(vi) The execution, delivery and performance of the Distribution
Agreement (including for such purposes any Terms Agreement), the Senior
Indenture, the Subordinated Indenture and the Notes by the Company and
compliance with the provisions hereof and thereof by the Company will
not constitute a breach of, or default under, the corporate charter or
by-laws of the Company, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed known to such
counsel and to which the Company is a party or, to the best of such
counsel's knowledge, any law, order, rule, regulation or decree of any
court, governmental agency or authority located in the United States
having jurisdiction over the Company or any property of the Company
which breach or default would be reasonably likely to have a material
adverse effect on the Company and its subsidiaries taken as a whole;
and no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of the Distribution Agreement (including for
such purposes any Terms Agreement), the Senior Indenture, the
Subordinated Indenture or the Notes by the Company except such as may
be required under applicable foreign or state securities or Blue Sky
laws or as have been duly made or obtained.
(vii) The Registration Statement has become effective under the
1933 Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(viii) At the time the Registration Statement became effective, the
Registration Statement appeared on its face to be appropriately
responsive in all material respects to the requirements of the 1933
Act, the 1939 Act and the regulations under each of those Acts.
(ix) Such counsel does not know of any legal or governmental
proceedings pending or threatened which are required to be described in
the Prospectus which were not described as required; and the
descriptions of statutes, legal and governmental proceedings and
contracts and other documents in the Prospectus are accurate and fairly
present the information required to be shown.
(x) Such counsel does not know of any contracts or documents of a
character required to be described in the Registration Statement or to
be filed as exhibits thereto which were not described or filed as
required.
(xi) Nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with the
SEC subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the most
recent such filing, and at the date hereof, or (if such opinion is
being delivered in connection with a Terms Agreement) at the date of
any Terms Agreement and at the Settlement Date with respect thereto, as
the case may be, contains or contained an untrue statement of a
material fact or omits or omitted to state a material fact necessary in
order
C-2
to make the statements therein, in the light of the circumstances under
which they were made, not misleading or that the Prospectus, as amended
or supplemented at the date hereof, or (if such opinion is being
delivered in connection with a Terms Agreement) at the date of any
Terms Agreement and at the Settlement Date with respect thereto, as the
case may be, contains an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, it being understood that such counsel need express no
opinion as to (A) the respective Statements of Eligibility (Form T-1s)
under the 1939 Act of the Senior Trustee and the Subordinated Trustee,
(B) the financial statements or other financial data contained in the
Registration Statement or the Prospectus, (C) any statements or
omissions made in reliance upon or in conformity with information
furnished in writing to the Company by or on behalf of an Agent for use
therein, (D) any statements, omissions or information relating to any
tax information in the Registration Statement or the Prospectus, or (E)
any statements, omissions or information relating to non-U.S. matters
or information contained therein.
C-3
EXHIBIT D
------- -
OPINION OF COUNSEL TO THE AGENTS
Pursuant to Section 6(a)(ii) (and to the extent required by
Sections 3(a) and 8(c)) of the Distribution Agreement, Xxxxxxxx & Xxxxxxxx,
counsel to the Agents, shall furnish to the Agents their opinion to the effect
that:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of North Carolina.
(2) The Indentures have been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939 and constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(3) Each of the Senior Notes and the Subordinated Notes has been
duly authorized and established in conformity with the Senior Indenture
or the Subordinated Indenture, as the case may be, and, when the terms
of a particular Note and of its issuance and sale have been duly
established in conformity with the resolutions of the board of
directors of the Company and have been duly authorized and established
by all necessary corporate action in conformity with the Senior
Indenture or the Subordinated Indenture, as the case may be, and such
Note has been duly prepared, executed, authenticated and issued in
accordance with the Senior Indenture or the Subordinated Indenture, as
the case may be, and delivered against payment in accordance with the
Distribution Agreement, such Note will constitute a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Note denominated
other than in U.S. dollars (or a foreign currency or foreign currency
unit judgment in respect of such claim be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units
or payments outside the United States).
(4) At the time the Registration Statement became effective, the
Registration Statement appeared on its face to be appropriately
responsive in all material respects to the requirements of the 1933
Act, the 1939 Act and the regulations under each of those Acts.
(5) Nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement, at the time it
became effective, and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been
D-1
filed by the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, and at the
date hereof, or (if such opinion is being delivered in connection with
a Terms Agreement) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contains or
contained an untrue statement of a material fact or omits or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in connection
with a Terms Agreement) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel,
however, does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under
the captions "Descriptions of the Notes We May Offer", "United States
Taxation" and "Plan of Distribution" insofar as they relate to
provisions of documents or of United States Federal tax law therein
described. It is understood that such counsel need express no opinion
as to the respective Statements of Eligibility (Form T-1s) under the
1939 Act of the Senior Trustee and the Subordinated Trustee, as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus or any statements or omissions
relating to non-U.S. matters or information contained therein.
D-2
EXHIBIT E
------- -
WACHOVIA CORPORATION
OFFICER'S CERTIFICATE
Pursuant to Section 6(b) of the Distribution Agreement, dated
May __, 2002 (the "Distribution Agreement"), among Wachovia Corporation (the
"Company"), First Union Securities, Inc. doing business under the trade name
"Wachovia Securities" and each of the agents listed on Schedule I thereto, the
undersigned officer hereby certifies, on behalf of the Company that, to the best
of his knowledge, after reasonable investigation:
(i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, or since the date of any
applicable Terms Agreement, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, other than as set forth or contemplated in the Prospectus;
(ii) there has not been any downgrading in the rating accorded to the
Company's unsecured debt securities by any "nationally recognized
statistical rating organization," as such term is described by the SEC
for purposes of Rule 436(g)(2) of the 1933 Act Regulations.
(iii) the other representations and warranties of the Company contained
in Section 2 of the Distribution Agreement are true and correct in all
material respects with the same force and effect as though expressly made
at and as of the date hereof except for those representations and
warranties that expressly relate to an earlier date, which are true and
correct in all material respects as of such date;
(iv) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied pursuant
to the Distribution Agreement at or prior to the date hereof in all
material respects; and
(v) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or to the best of his knowledge threatened by the SEC.
For the purpose hereof, capitalized terms used herein
which have been defined in the Distribution Agreement shall have the meanings
ascribed to them in the Distribution Agreement.
E-1
IN WITNESS WHEREOF, this certificate has been executed and delivered this day of
May __, 2002.
WACHOVIA CORPORATION
By: _________________________
Name:
Title:
E-2
EXHIBIT F
------- -
ACCOUNTANT'S COMFORT LETTER
Pursuant to Section 6(c) (and to the extent required by Sections 3(a)
and 8(d) of the Distribution Agreement), independent accountants to the Company
shall furnish to the Agents their letter, with respect to this Company, to the
effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
any supplementary financial information and schedules of the Company
and its subsidiaries examined by them and included or incorporated by
reference in the Registration Statement and Prospectus as amended or
supplemented comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a reading of the unaudited financial statements
and other information referred to below, a reading of the latest
available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(a) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
changes in financial position for the five most recent fiscal
years which was included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year does not agree with the corresponding amounts in the audited
consolidated financial statements for such fiscal years which
were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three fiscal years;
(b) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
changes in financial position included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus as amended or
supplemented do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and
the 1934 Act Regulations or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated statements of
F-1
income, consolidated balance sheets and consolidated
statements of changes in financial position included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(c) any unaudited financial data included in the
Prospectus as amended or supplemented as at any time, or for
any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company (and
any data for any comparable prior period included therein) do
not agree with the corresponding amounts in the unaudited
consolidated financial statements from which such data are
derived, or any such unaudited financial data were not
determined on a basis for the corresponding amounts in the
audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(d) the unaudited pro forma consolidated condensed
financial statements (if any) included or incorporated by
reference in the Prospectus as amended or supplemented do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of those statements;
(e) as of a specified date not more than five days
prior to the date of delivery of such letter there have been
any changes in the capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus as amended or supplemented) or long-term debt of
the Company or any of its subsidiaries, or any decreases in
consolidated stockholders' equity, consolidated assets,
consolidated deposits, or allowance for loan losses of the
Company or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case
as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus as
amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or
supplemented discloses have occurred or may occur or which are
described in such letter; and
(f) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus as amended or supplemented to the end of the
latest period for which financial statements are available
there were any decreases in consolidated net interest income,
net interest income after provision for loan losses, or the
total or per share amounts of net income of the Company or
other items specified by the Agents, or any increases in any
items specified by the Agents, in each case as compared with
the comparable period of corresponding length specified by the
Agents, except in each case for increases or decreases which
the Prospectus as amended or supplemented discloses have
occurred or may occur or which are described in such letter.
F-2
(iv) In addition to the examination referred to in
their report included or incorporated by reference in the
Registration Statement and the Prospectus as amended and
supplemented, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
derived from the general accounting records of the Company and
its subsidiaries, are included or incorporated by reference in
the Registration Statement and Prospectus as amended or
supplemented and are specified by the Agents, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such
letter.
F-3
EXHIBIT G-1
------- ---
WACHOVIA CORPORATION
Senior Medium-Term Notes, Series E
Subordinated Medium-Term Notes, Series F
9 Months or More from Date of Issue
Agent Agreement
[date]
[Name of Agent]
[Address of Agent]
Ladies and Gentlemen:
Reference is made to the Distribution Agreement (including the exhibits
thereto) dated as of May__, 2002 (the "Distribution Agreement") among Wachovia
Corporation (the "Company"), a corporation organized under the laws of North
Carolina, First Union Securities, Inc. doing business under the trade name
"Wachovia Securities" and each of the agents listed on Schedule I thereto with
respect to the issue and sale by the Company of the Notes (as such term is
defined in the Distribution Agreement). A conformed copy of the Distribution
Agreement has been attached hereto as Annex A.
-------
WHEREAS, the Company is permitted under the terms of the Distribution
Agreement to appoint additional agents for the purpose of soliciting purchases
of the Notes upon such terms as the Company and such agents may agree; and
WHEREAS, [Name of Agent] and the Company wish to enter into an
agreement appointing [Name of Agent] as an additional agent with respect to the
Notes;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the Company hereby agrees that [Name of Agent] shall become an
additional Agent (as defined herein) with respect to the Notes and [Name of
Agent] xxxxxx agrees to become an Agent with respect to the Notes and to be
bound by the terms and conditions of the Distribution Agreement, which terms and
conditions are hereby incorporated by reference herein except that the terms
"Agent" and "Agents" shall instead mean or include [Name of Agent]. No person
other than [Name of Agent] shall be deemed to be an Agent under this Agreement.
This Agreement may be signed in counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
G-1-1
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter, including Annex A, and your acceptance shall represent a
-------
binding agreement between you and the Company in accordance with its terms.
Very truly yours,
WACHOVIA CORPORATION
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
By: ___________________
Name:
Title:
[Name of Agent]
By:
__________________________
Name:
Title:
G-1-2
EXHIBIT G-2
------- ---
FORM OF SYNDICATED TERMS AGREEMENT
----------------------------------
[date]
To: The Agents Listed on Annex 1 Hereto
c/o _____________________________
(the "Lead Agent")
Re: Wachovia Corporation (the "Issuer")
U.S.$ 4,000,000,000 Medium-Term Note Program
--------------------------------------------
Ladies and Gentlemen:
Subject to the terms and conditions of the Distribution Agreement,
dated May__, 2002, among the Issuer, First Union Securities, Inc. doing business
under the trade name "Wachovia Securities", and the agents listed on Schedule I
thereto (together with the agents named in Annex 1 hereto, the "Agents")
-------
concerning the sale of Notes to be issued by the Company, as amended or
supplemented, the agents named in Annex 1 hereto agree to purchase on a
-------
syndicated basis the __________ Notes due __________ of the Issuer (the
"Notes"), described in the Pricing Supplement attached as Annex 2 hereto, on the
-------
terms set out in such Pricing Supplement and on the terms set out below. Unless
otherwise defined herein, all terms used herein have the meanings given to them
in the Distribution Agreement.
1. Subject to the terms and conditions of the Distribution Agreement and
this Agreement, the Issuer hereby agrees to issue the Notes, and the
Agents severally agree to purchase the Notes at the purchase price of
_________ per Note (being equal to the issue price of __% of the
principal amount less a management and underwriting fee of __% of the
principal amount and a selling concession of __% of the principal
amount).
2. The purchase price specified above will be paid by the Lead Agent on
behalf of the Agents by wire transfer in immediately available funds to
the Issuer at ____ (____ time) on __________, __, or at such other time
and/or date as the Issuer and the Lead Agent on behalf of the Agents
may agree (the "Settlement Time") against delivery of the Notes to or
upon your order in the manner contemplated in the Distribution
Agreement and the [Senior][Subordinated] Indenture.
3. The Agents' obligations hereunder are conditioned on (a) the receipt
of: (i) opinions of counsel described in Section 6 of the Distribution
Agreement, dated as of the Settlement Time, (ii) a "comfort letter"
described in Section 6 of the Distribution Agreement, dated as of the
Settlement Time, (iii) the officer's certificate described in Section 6
of the Distribution Agreement, dated as of the Settlement Time; (b)
since the date of this Agreement, there having not occurred, in the
reasonable opinion of the Agents, a change
G-2-1
in international financial, political or economic conditions or
currency exchange rates or exchange controls as would be likely to
prejudice materially the sale by the Agents of the Notes; and (c) such
other opinions, certificates and documents as may be agreed by the
Issuer and the Agents on or prior to the date of this Agreement.
4. The Issuer hereby appoints each Agent party hereto which is not a
party to the Distribution Agreement (each a "New Agent") as an Agent
under the Distribution Agreement solely for the purposes of the issue
of the Notes (the "Issue"), pursuant to Section 1 of the Distribution
Agreement. Each such New Agent shall be vested, in relation to the
Issue, with all authority, rights, powers, duties and obligations of an
Agent purchasing Notes pursuant to the Distribution Agreement, as if
originally named as an Agent under the Distribution Agreement.
In consideration of the Issuer appointing each New Agent as an Agent
with respect to the Issue, each New Agent hereby undertakes for the
benefit of the Issuer and each of the other Agents, that, in relation
to the Issue it will perform and comply with all of the duties and
obligations expressed to be assumed by an Agent under the Distribution
Agreement, a copy of which it acknowledges it has received.
Each New Agent acknowledges that such appointment is limited to the
Issue and is not for any other issue of Notes of the Issuer pursuant to
the Distribution Agreement and that such appointment will terminate
upon issue of the Notes comprising the Issue but without prejudice to
any rights, duties or obligations which have arisen prior to such
termination.
For the purposes hereof, the notice details of each New Agent are as
follows (insert name, address, telephone, telecopy and attention):
[insert notice details]
G-2-2
This Agreement is a Syndicated Terms Agreement referred to in the
Distribution Agreement and shall be governed by and construed in accordance with
the law of the State of New York, without regard to conflicts of law principles.
Very truly yours,
[Agents] [New Agents]
By:____________________
Name:
Title:
Accepted: [_]
WACHOVIA CORPORATION
By:___________________________
Name:
Title:
G-2-3
ANNEX 1
-------
AGENT PRINCIPAL AMOUNT
----- OF NOTES
-----------------
TOTAL
_________________
ANNEX 2
-------
[ATTACH PRICING SUPPLEMENT]
EXHIBIT H
---------
SELLING RESTRICTIONS
--------------------
Each Agent and the Company will, in connection with the offering of
the Notes on behalf of the Company, comply with the restrictions on the offering
of Notes and distribution of documents relating thereto set forth in below
and/or such other restrictions agreed to by the Company and such Agent.
General
No action has been taken by the Company that would permit a public
offering of the Notes or possession or distribution of the Prospectus, including
any supplements thereto, or any other offering material in any jurisdiction
outside the United States where action for that purpose is required other than
as described below. Accordingly, each Agent represents, warrants and agrees, and
each other agent will be required to represent, warrant and agree, that it will
comply with all applicable laws and regulations in force in any such
jurisdiction in which it purchases, offers or sells Notes or possesses or
distributes the Prospectus, including any supplements thereto, or any other
offering material and will obtain any consent, approval or permission required
by it for the purchase, offer or sale by it of Notes under the laws and
regulations in force in any such jurisdiction to which it is subject or in which
it makes such purchases, offers or sales and the Company shall have no
responsibility therefor.
With regard to each Note, the relevant purchaser will be required to
comply with such restrictions as the Company and the relevant purchaser shall
agree and as shall be set out in the applicable Pricing Supplement to the
Prospectus.
United Kingdom
Each Agent has represented and agreed, and each other agent will be
required to represent and agree, that:
(i) with respect to Notes which have a maturity of one year or
more, it has offered or sold and, prior to the expiry of a period of
six months from the issue date of such Notes, will not offer to sell
any such Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(ii) with respect to any Notes which must be redeemed before the
first anniversary of the date of their issue, (a) it is a person whose
ordinary activities involve it in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
its business and (b) it has not offered or sold and will not offer or
sell any Notes other than to persons whose ordinary activities involve
them in acquiring, holding,
H-1
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal or agent)
for the purposes of their businesses where the issue of the Notes would
otherwise constitute a contravention of Section 19 of the Financial
Services and Markets Act 2000 (the "FSMA") by the Company;
(iii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue or
sale of any Notes in circumstances in which Section 21(l) of the FSMA
does not apply to the Company; and
(iv) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to such
Notes in, from or otherwise involving the United Kingdom.
Japan
The Notes have not been, and will not be, registered under the
Securities and Exchange Law of Japan. Accordingly, each Agent has represented
and agreed, and each other agent or dealer will be required to represent and
agree, that, in connection with the Notes, it has not, directly or indirectly,
offered, sold or delivered and will not directly or indirectly, offer, sell or
deliver any Notes in Japan or to residents of Japan or for the benefit of any
Japanese person (which term as used herein means any person resident in Japan
including any corporation or other entity organized under the laws of Japan) or
to others for re-offering, resale or delivery, directly or indirectly, in Japan
or to, or for the benefit of, any resident of Japan or to any Japanese person
except in compliance with any applicable laws and regulations of Japan taken as
a whole. Each Agent agrees to provide any necessary information on Notes
denominated or payable in Yen to the Company (which shall not include the names
of clients) so that the Company may make any required reports to the Ministry of
Finance through its designated agent.
In connection with an issuance of Notes denominated or payable in Yen,
the Company will be required to comply with all applicable laws, regulations and
guidelines, as amended from time to time, of the Japanese government and
regulatory authorities.
H-2
France
The Prospectus has not been submitted to the French Commission des
operations de bourse for approval and the Notes have not and will not be offered
or sold, directly or indirectly, to the public in France. Accordingly, each
Agent has agreed that it will only offer Notes in France to qualified investors,
as defined under Article 6 of French Ordinance No. 67-833 dated September 28,
1967 (as amended); provided, in this case, that it shall have obtained a
certificate from the investor providing an acknowledgment that: (i) the offering
is a private placement in France and no prospectus has been submitted to the
Commission de operations de bourse, (ii) the investor is an "investisseur
qualifie" within the meaning of Article 6 of French Ordinance No. 67-833 dated
September 28, 1967 (as amended), (iii) the investor is investing for his own
account, and (iv) the investor will not resell the Notes in violation of French
securities laws and regulations.
Germany
No selling prospectus (Verkausprospekt) within the meaning of the
German Securities Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December
13, 1990 (as amended) has been and will be registered or published within the
Federal Republic of Germany. The Notes have not been offered or sold and will
not be offered or sold in the Federal Republic of Germany otherwise than in
accordance with the provisions of the Securities Prospectus Act.
Switzerland
Each Agent has represented and agreed, and each other agent will be
required to represent and agree, that the issue of any Notes denominated in
Swiss Francs or carrying a Swiss Franc-related element will be effected in
compliance with the relevant regulations of the Swiss National Bank, which
currently require that such issues have a maturity of more than one year, to be
effected through a bank domiciled in Switzerland that is regulated under the
Federal Law on Banks and Savings Banks of 1934 (as amended) (which includes a
branch or subsidiary located in Switzerland of a foreign bank) or through a
securities dealer which has been licensed as a securities dealer under the Swiss
Federal Law on Stock Exchanges and Securities Trading of 1995 (except for issues
of Notes denominated in Swiss Francs on a syndicated basis, where only the lead
manager need be a bank domiciled in Switzerland). The relevant Agent must report
certain details of the relevant transactions to the Swiss National Bank no later
than the time of delivery of the Notes.
The Netherlands
Each Agent has represented and agreed, and each other agent will be
required to represent and agree, that it has not, directly or indirectly,
offered or sold and will not, directly or indirectly, offer or sell in The
Netherlands any Notes with a denomination of less than _50,000 (or its foreign
currency equivalent) other than to persons who trade or invest in securities in
the conduct of a profession or business (which includes banks, stockbrokers,
insurance companies, pension funds, other institutional investors and finance
companies and treasury departments of large enterprises) unless one of the other
exemptions or exceptions to the prohibition contained in
H-3
Article 3 of the Dutch Securities Transactions Supervision Act 1995 ("Wet
toezicht effectenverkeer 1995") is applicable and the conditions attached to
such exemption or exception are complied with.
H-4
EXHIBIT I
---------
ADMINISTRATIVE PROCEDURES MEMORANDUM
(Dated as of May __, 2002)
FOR
WACHOVIA CORPORATION
Senior Global Medium-Term Notes, Series E
Subordinated Global Medium-Term Notes, Series F
Due 9 Months or More from Date of Issue
The Senior Global Medium-Term Notes, Series E (the "Senior
Notes") and Subordinated Global Medium-Term Notes, Series F (the "Subordinated
Notes" and, together with the Senior Notes, the "Notes") may from time to time
be offered on a continuing basis for sale by the Wachovia Corporation (the
"Company") through each of First Union Securities, Inc. doing business under the
trade name "Wachovia Securities", [any other name(s)] and each of the agents
listed on Schedule I to the Distribution Agreement to which these Administrative
Procedures are an exhibit (the "Distribution Agreement"), who (each, a
"Distribution Agent" and, collectively, the "Distribution Agents") may purchase
the Notes, as principal from the Company for resale to investors and other
purchasers in accordance with the Distribution Agreement. In addition, if agreed
to by the Company and the applicable Distribution Agent, such Distribution Agent
may utilize its reasonable efforts on an agency basis to solicit offers to
purchase the Notes. Only those provisions in these Administrative Procedures
that are applicable to the particular role that a Distribution Agent will
perform shall apply. Whenever these Administrative Procedures indicate that
information may be set forth in a Note, such information may also be set forth
in a Pricing Supplement to the Prospectus (as defined below).
Wachovia Bank, N.A. (the "Bank") (or such other agent appointed in
accordance with the Senior Indenture or the Subordinated Indenture, as the case
may be) will act as registrar and domestic paying agent for the Notes through
its corporate trust office in New York, New York or its headquarters in
Charlotte, North Carolina. Citibank, N.A., acting through its London office (or
such other agent appointed in accordance with the Senior Indenture or the
Subordinated Indenture, as the case may be), will act as London paying agent and
London issuing agent. Dexia Banque Internationale a Luxembourg, acting through
its Luxembourg office (or its successor) will act as paying agent and transfer
agent in relation to the Notes as long as the Notes are listed on the Luxembourg
Stock Exchange. As used herein, the term "Prospectus" refers to the most recent
Prospectus, as such document may be amended or supplemented, which has been
prepared by the Company for use by the Distribution Agents in connection with
the offering of the Notes.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Notes or the Prospectus.
DTC REGISTERED GLOBAL NOTES
---------------------------
I-1
Notes may be issued in book-entry form (each beneficial
interest in a global Note, a "Book-Entry Note" and collectively, the "Book-Entry
Notes") and represented by one or more fully registered global Notes (each, a
"Global Note" and collectively, the "Global Notes") held by or on behalf of The
Depository Trust Company, as depositary ("DTC", which term includes any
successor thereof), and recorded in the book-entry system maintained by DTC.
Book-Entry Notes represented by a Global Note are exchangeable for definitive
Notes in registered form, of like tenor and of an equal aggregate principal
amount, by the owners of such Book-Entry Notes only upon certain limited
circumstances described in the Prospectus.
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank or its agents
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under the
applicable Letters of Representations from the Company and the Bank to DTC
relating to the Program, and a Certificate of Deposit Agreement between the
Company, the Bank and DTC (the "Certificate Agreement"), and the Bank's
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Settlement Procedures for Settlement Procedures with regard to Book-Entry
Book-Entry Notes: Notes purchased by each Distribution Agent as
principal or sold by each Distribution Agent, as
agent of the Company, will be as follows (which
will have been agreed to by the Company and such
Distribution Agent in accordance with the
Distribution Agreement):
(A) The Distribution Agent will advise the
Company by telephone, confirmed by
facsimile, of the following settlement
information:
1. Taxpayer identification number of
the purchaser.
2. Principal amount of such Book-
Entry Notes.
3. Whether the Note is a Senior Note
or a Subordinated Note.
4. Each term specified in the
applicable Pricing Supplement.
5. Price to public, if any, of such
Book-Entry Notes (if such
Book-Entry Notes are not being
offered "at the market").
6. Trade Date.
7. Settlement Date (Original Issue
Date).
I-2
8. Maturity Date.
9. Redemption provisions, if any,
including: Initial Redemption
Date, Initial Redemption
Percentage and Annual Redemption
Percentage Reduction.
Repayment provisions, if any,
including Xxxxxx's Optional
Repayment Date(s).
10. Net proceeds to the Company.
11. Whether such Book-Entry Notes are
being sold to the Distribution
Agent as principal or to an
investor or other purchaser
through the Distribution Agent
acting as agent for the Company.
12. The Distribution Agent's
commission or discount, as
applicable.
13. Whether such Book-Entry Notes are
being issued with Original Issue
Discount and the terms thereof.
14. Default Rate.
15. Identification numbers of
participant accounts maintained by
DTC on behalf of the Distribution
Agent.
16. Whether additional documentation
will be required for Notes being
sold to the Distribution Agent as
principal.
17. Such other information specified
with respect to such Book-Entry
Notes (whether by Addendum or
otherwise).
(B) The Registrar will assign a CUSIP
number of the appropriate series to the
Global Note representing such
Book-Entry Notes and, as soon
thereafter as practicable, the
Registrar will notify the Distribution
Agent by telephone of such CUSIP
number.
(C) The Registrar will communicate to DTC
and the Distribution Agent through
DTC's Participant
I-3
Terminal System, a pending deposit
message specifying the following
settlement information:
1. The information set forth in
Settlement Procedure A.
2. The identification numbers of the
participant accounts maintained by
DTC on behalf of the Registrar and
the Distribution Agent.
3. Identification of the Book-Entry
Note as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry
Note.
4. The initial Interest Payment Date
for the Global Note representing
such Book-Entry Notes, the number
of days by which such date
succeeds the related Record Date
and, if then calculable, the
amount of interest payable on such
Interest Payment Date (which
amount shall have been confirmed
by the Company).
5. The CUSIP number of the Global
Note representing such Book-Entry
Notes.
6. Whether such Global Note
represents any other Notes issued
or to be issued in book-entry
form.
The Registrar will complete and deliver
to the Trustee the Global Note
representing such Book-Entry Notes in a
form that has been approved by the
Company and the relevant Distribution
Agents to DTC (or its custodian) and
the Company will deliver its
authentication instructions to the
Trustee.
(D) The Trustee will authenticate pursuant
to the Company's instructions the
Global Note representing such
Book-Entry Notes in a form that has
been approved by the Company and the
relevant Distribution Agents.
(E) DTC will credit the Book-Entry Notes
represented by such Global Note to the
participant account of the Registrar
maintained by DTC.
I-4
(F) The Registrar will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Book-Entry Notes to the
Registrar's participant account and
credit such Book-Entry Notes to the
participant account of the Distribution
Agent maintained by DTC and (ii) to
debit the settlement account of the
Distribution Agent and credit the
settlement account of the Registrar
maintained by DTC, in an amount equal
to the price of such Book-Entry Notes
less such Distribution Agent's
commission or discount. Any entry of
such deliver order shall be deemed to
constitute a representation and
warranty by the Registrar to DTC that
(i) the Global Note representing such
Book-Entry Notes has been issued and
authenticated and (ii) the Registrar is
holding such Global Note pursuant to
the Certificate Agreement.
(G) In the case of Book-Entry Notes sold
through a Distribution Agent acting as
agent, the Distribution Agent will
enter an SDFS deliver order through
DTC's Participant Terminal System
instructing DTC (i) to debit such
Book-Entry Notes to the Distribution
Agent's participant account and credit
such Book-Entry Notes to the
participant accounts of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of
such Participants and credit the
settlement account of the Distribution
Agent maintained by DTC, in an amount
equal to the offering price of such
Book-Entry Notes.
(H) Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
(I) In the case of Book-Entry Notes sold
through a Distribution Agent acting as
agent, the Distribution Agent will
confirm the purchase of such Book-Entry
Notes to the purchaser either by
transmitting to the Participant with
respect to such Book-Entry Notes a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
purchaser.
I-5
Settlement Procedures For offers to purchase Book-Entry Notes accepted
Timetable: by the Company, Settlement Procedures "A"
through "I" set forth above shall be completed
as soon as possible but no later than the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 5:00 p.m. on the Trade Date
D 9:00 am. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:00 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled on the same Business
Day as the Trade Date, Settlement Procedures C,
D, F and G shall be completed no later than 2:30
p.m. on such Business Day.
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such trade
date. In connection with a sale which is to be
settled more than one Business Day after the
trade date, if the initial interest rate for a
Floating Rate Note is not known at the time that
Settlement Procedure A is completed, Settlement
Procedures B and C shall be completed as soon as
such rate has been determined, but no later than
11:00 a.m. and 2:00 p.m., New York City time,
respectively, on the second Business Day before
the Settlement Date.
Settlement Procedure H is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement Date.
I-6
If settlement of a Book-Entry Note is
rescheduled or canceled, the Company shall
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such
effect by no later than 5:00 p.m., New York City
time, on the Business Day immediately preceding
the scheduled Settlement Date.
Failure to Settle: If the Registrar fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure F, then the Registrar
may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such
Book-Entry Note to the participant account of
the Registrar maintained at DTC. DTC will
process the withdrawal message; provided that
such participant account contains a principal
amount of the Global Note representing such
Book-Entry Note that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all
Book-Entry Notes represented by a Global Note,
the Registrar will mark such Global Note
"canceled" and make appropriate entries in its
records. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages
are processed with respect to some of the
Book-Entry Notes represented by a Global Note,
the Registrar will exchange such Global Note for
two Global Notes, one of which shall represent
the Book-Entry Notes for which such withdrawal
messages are processed and shall be canceled
immediately after issuance, and the other of
which shall represent the other Book-Entry Notes
previously represented by the surrendered Global
Note and shall bear the CUSIP number of the
surrendered Global Note.
In the case of any Book-Entry Note sold through
a Distribution Agent, acting as agent, if the
purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to
such Book-Entry Note by the beneficial purchaser
thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the
applicable Distribution Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, the
I-7
Registrar will deliver the withdrawal message
and take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the
event of a failure to settle with respect to a
Book-Entry Note that was to have been
represented by a Global Note also representing
other Book-Entry Notes, the Registrar will
provide, in accordance with Settlement Procedure
D, for the issuance of a Global Note
representing such remaining Book-Entry Notes and
will make appropriate entries in its records.
Preparation and Delivery of
Pricing Supplements: If any offer to purchase a Note is accepted by
the Company, the Company will promptly prepare a
Pricing Supplement reflecting the terms of such
Note. The Company shall deliver copies of such
Pricing Supplement to the Distribution Agent
which made or presented the offer to purchase
the applicable Note, as instructed by such
Distribution Agent, and to the paying agent as
soon as practicable following the trade, but in
no event later than 11:00 a.m. on the Business
Day following the applicable trade date.
I-8
