NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
_______________, 199__
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 12
of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation
(the "Corporation"), confirms its agreement with each of you
(individually, as "Agent" and collectively, the "Agents") with
respect to the issue and sale by the Corporation of its Senior
Medium-Term Notes, Series __ (the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated
Notes," and together with the Senior Notes, the "Notes"). The
Senior Notes are to be issued pursuant to an Indenture dated as of
January 1, 1995 between the Corporation and BankAmerica National
Trust Company (the "Senior Trustee"), as trustee (the "Senior
Indenture"). The Subordinated Notes are to be issued pursuant to
an Indenture dated as of January 1, 1995 between the Corporation
and The Bank of New York (the "Subordinated Trustee"), as trustee
(the "Subordinated Indenture). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the
"Trustees," and the Senior Indenture and the Subordinated Indenture
are collectively referred to herein as the "Indentures."
This Agreement provides both for the sale of Notes (i)
by the Corporation directly to purchasers using Agents to solicit
purchasers in their capacity as agents of the Corporation and (ii)
by the Corporation to one or more of the Agents as principal for
resale to purchasers.
The Corporation has filed with the Securities and
Exchange Commission (the "SEC") a registration statement on Form
S-3 (No. __________) for the registration of debt securities (both
senior and subordinated), preferred shares and common shares under
the Securities Act of 1933, as amended (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 the Trustees have been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (and any further registration statements
which may be filed by the Corporation for the purpose of
registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit)
and the prospectus constituting a part thereof, and any prospectus
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, as amended (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
Corporation for use in connection with the offering of the Notes
which is not required to be filed by the Corporation 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 Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein including the reservation by the Corporation of the
right to sell Notes directly on its own behalf as set forth in
Section 3(c) hereof, the Corporation hereby appoints the Agents
named herein or appointed hereunder as agents in connection with
the sale of the Notes. The Agents are authorized to engage the
services of any other broker or dealer in connection with the offer
or sale of the Notes purchased by an Agent as principal for resale
to others, but are not authorized to appoint sub-agents in
connection with the sale of Notes through an Agent as agent.
(b) Sale of Notes. The Corporation shall not sell or
approve the solicitation of purchases of Notes in excess of the
amount which shall be authorized by the Corporation from time to
time or in excess of the principal amount of Notes registered
pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise monitoring
the availability of Notes for sale under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have
any obligation to purchase Notes from the Corporation as principal,
but an Agent and the Corporation may agree from time to time that
such Agent shall purchase Notes as principal. Any such purchases
of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an
Agent and the Corporation, the Agent, acting solely as agent for
the Corporation and not as principal, will solicit purchases of the
Notes. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed to by the
Corporation and such Agent. Such Agent will communicate to the
Corporation, 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 by
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persons solicited by the Agent, as a whole or in part, and any such
rejection shall not be deemed a breach of the Agent's agreement
contained herein. The Corporation may accept or reject any
proposed purchase of the Notes, in whole or in part, and any such
rejection shall not be deemed a breach of the Corporation's
agreement herein. The Agent shall make reasonable efforts to
assist the Corporation in obtaining performance by each purchaser
whose offer to purchase Notes has been solicited by such Agent and
accepted by the Corporation. The Agent shall not have any
liability to the Corporation in the event any such agency purchase
is not consummated for any reason other than the negligence of the
Agent. If the Corporation shall default on its
obligation to deliver Notes to a purchaser whose offer it
has accepted, the Corporation shall (i) hold the Agent for
such purchase harmless against any loss, claim or damage
arising from or as a result of such default by the
Corporation and (ii) notwithstanding such default, pay to
such Agent any commission to which it would be entitled in
connection with such sale.
The Corporation reserves the right, in its sole
discretion, to suspend solicitation of purchases of the Notes
through the Agents, as agent, commencing at any time for any period
of time or permanently. Upon receipt of instructions from the
Corporation, the Agents will forthwith suspend solicitation of
purchases from the Corporation until such time as the Corporation
has advised the Agents that such solicitation may be resumed.
For those offers to purchase Notes accepted by the
Corporation, the Agent shall be paid a commission. Unless
otherwise agreed between the Corporation and the Agent, such
commission shall be an amount equal to the applicable percentage of
the principal amount of each Note sold by the Corporation as a
result of a solicitation made by such Agent as set forth in Exhibit
C hereto.
(e) Reliance. The Corporation and the Agents agree
that 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 Corporation contained
herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the
Agents as of the date hereof, as of the date of each acceptance by
the Corporation of an offer for the purchase of Notes (whether
through an Agent as agent or to an Agent as principal), as of the
date of each delivery of Notes (whether through an Agent as agent
or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with
the SEC any document incorporated by reference into the Prospectus
(other than
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any Current Report on Form 8-K relating exclusively to
the issuance of debt securities under the Registration Statement)
(each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Corporation meets the requirements for
use of Form S-3 under the 1933 Act and has filed with the SEC
the Registration Statement, which has become effective. Such
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as
supplemented with respect to the Notes is first filed pursuant
to Rule 424 under the 1933 Act, when any amendment to the
Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration
Statement) and as of the applicable Representation Date, (a)
the Registration Statement, as amended or supplemented as of
any such time, the Prospectus, when filed, and the applicable
Indenture will comply in all material respects with the
applicable requirements of the 1933 Act, the 1939 Act and the
1934 Act and the respective rules thereunder, (b) the
Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (c) the Prospectus, as amended or supplemented
as of any such time, will not contain any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Corporation
makes no representations or warranties as to (x) that part of
the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the 1939 Act of either of the Trustees or (y)
the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Corporation by or on
behalf of any Agent specifically for use in connection with
the preparation of the Registration Statement and the
Prospectus.
(iii) The Corporation has complied and will comply
with all the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and
all regulations promulgated thereunder relating to issuers
doing business in Cuba; provided, however, that in the event
that such Section 517.075 shall be repealed, or amended such
that issuers shall no longer be required to disclose in
prospectuses information regarding business activities in Cuba
or that a broker, dealer or agent shall no longer be required
to obtain a statement from issuers regarding such compliance,
then this representation and agreement shall be of no further
force and effect.
(b) Additional Certifications. Any certificate signed
by any director or officer of the Corporation and delivered to an
Agent or to counsel for such Agent 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 Corporation to such
Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Etc.
(a) Purchases as Principal. In the event that an
Agent and the Corporation shall expressly so agree, Notes shall be
purchased by such Agent as principal. Each purchase of Notes,
unless otherwise agreed, shall be at a discount equivalent to the
applicable commissions set forth in Exhibit C hereto. Such
purchases shall be made in accordance with terms agreed upon by the
Agent and the Corporation (which shall be agreed upon orally, with
written confirmation prepared by the Agent and delivered to the
Corporation within two business days of such oral agreement). In
the absence of a separate written agreement, the Agent's commitment
to purchase Notes as principal shall be deemed to have been made on
the basis of the representations, warranties and covenants of the
Corporation herein contained and shall be subject to the terms and
conditions in the manner set forth herein, including Section 11(b)
hereof. An Agent may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as
principal and may reallow any portion of the discount received in
connection with such purchases from the Corporation to such brokers
and dealers.
(b) Corporation Sales to Unsolicited Purchasers.
Notwithstanding any provision herein to the contrary, the
Corporation reserves the right to (i) sell Notes, at any time,
directly on its own behalf to any unsolicited purchaser, whether
directly to such purchaser or through the agent of such purchaser,
and (ii) accept offers to purchase Notes through additional agents
on substantially the same terms and conditions as would apply to
the Agents hereunder. Upon the sale of any Notes to an unsolicited
purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(c) Administrative Procedures. The purchase price,
interest rate, maturity date and other terms of the Notes (as
applicable) specified in Exhibit B hereto shall be agreed upon by
the Corporation and the applicable Agent and set forth in a pricing
supplement to the Prospectus to be prepared following each
acceptance by the Corporation of an offer for the purchase of
Notes. Administrative procedures with respect to the sale of Notes
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shall be agreed upon from time to time by the Agents and the
Corporation (the "Procedures"). Initial Administrative Procedures
dated __________, 199_ shall remain in effect until changed by the
Agents and the Corporation. The Agents and the Corporation agree
to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will
notify the Agents immediately (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 (other than with respect to a document
filed with the SEC pursuant to the 1934 Act which will be
incorporated by reference in the Registration Statement and 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 relating thereto (other
than such a request with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in
the Registration Statement and the Prospectus), and (v) of the
issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings
for that purpose. The Corporation will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The
Corporation will give the Agents notice of its intention to file or
prepare any additional registration statement with respect to the
registration of additional Notes or 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 or maturity dates of Notes or
similar changes or an amendment or supplement effected by the
filing of a document with the SEC pursuant to the 1934 Act) and,
upon request, will furnish the Agents with copies of any such
registration statement or amendment or supplement proposed to be
filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any
such registration statement or amendment or supplement in a form to
which the Agents or their counsel shall reasonably object.
(c) Copies of the Registration Statement and the
Prospectus and 1934 Act Filings. The Corporation will deliver to
the Agents as many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto
(including
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exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Corporation will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the
Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes under the
Act. The Corporation will furnish to the Agents copies of any
Annual Report on Form 10-K, Quarterly Report on Form 10-Q or
Current Report on Form 8-K filed by the Corporation with the
Commission pursuant to the 1934 Act as soon as practicable after
the filing thereof.
(d) Preparation of Pricing Supplements. The
Corporation will prepare, with respect to any Notes to be sold
through or to an Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved
by the Agents and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close
of business on the second business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (k) of this Section, if
at any time during the term of this Agreement any event shall occur
or condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Corporation, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, 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, immediate
notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes any Agent
may then own as principal, and the Corporation will promptly
prepare and file with the SEC such amendment or supplement, whether
by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection (k) of
this Section, on or prior to the date on which there shall be
released to the general public interim financial statement
information related to the Corporation with respect to each of the
first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Corporation shall furnish such
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information to the Agents, confirmed in writing, and thereafter
shall cause the Prospectus to be amended or supplemented to include
or incorporate by reference financial information with respect
thereto, as well as such other information and explanations as
shall be necessary for an understanding thereof, as may be required
by the 1933 Act or the 1934 Act or otherwise.
(g) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection (k) of
this Section, on or prior to the date on which there shall be
released to the general public financial information included in or
derived from the audited financial statements of the Corporation
for the preceding fiscal year, the Corporation shall furnish such
information to the Agents and thereafter shall cause the
Registration Statement and the Prospectus to be amended to include
or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations
as shall be necessary for an understanding of such financial
statements, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(h) Earnings Statements. The Corporation will make
generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the
first day of the Corporation's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Corporation will
endeavor, in 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 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 Corporation shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Corporation 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 Corporation will
promptly advise the Agents of the receipt by the Corporation 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.
(j) 1934 Act Filings. The Corporation, during the
period when the Prospectus is required to be delivered under the
1933 Act,
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will file promptly all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Suspension of Certain Obligations. The
Corporation shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section during any period from
the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agent pursuant to a
request from the Corporation and (ii) the Agents shall not then
hold any Notes as principal purchased from the Corporation, to the
time the Corporation shall determine that solicitation of purchases
of the Notes should be resumed or shall subsequently agree for the
Agents to purchase Notes as principal.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to
purchase the Notes as agent of the Corporation, the obligations of
any purchasers of the Notes sold through any Agent as agent and any
obligation of an Agent to purchase Notes as principal or otherwise
will be subject to the accuracy of the representations and
warranties on the part of the Corporation herein and to the
accuracy of the statements of the Corporation's officers made in
any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Corporation of all its covenants
and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents
shall have received the following legal opinions, dated as of the
date hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion
of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., counsel to the
Corporation, to the effect of paragraphs (i) and (iv) through
(x) below, and the opinion of Xxxx X. Xxxxxxx, Executive Vice
President and General Counsel to the Corporation, to the
effect of paragraphs (ii) and (iii) below:
(i) The Corporation is a duly organized and
validly existing corporation in good standing under the
laws of the State of North Carolina, has the corporate
power and authority to own its properties and conduct its
business as described in the Prospectus and is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of
NationsBank of Florida, National Association, NationsBank
of Georgia, National Association, NationsBank, National
Association (Carolinas), NationsBank of Texas, National
Association, and NationsBank, National Association (or
the successors to such entities) (collectively, the
"Subsidiaries"), is a national banking association formed
under the laws of
9
the United States and authorized thereunder to transact
business.
(ii) Except for those jurisdictions
specifically enumerated in such opinion, to the best of
such counsel's knowledge, neither the Corporation nor any
of the Subsidiaries is required to be qualified or
licensed to do business as a foreign corporation in any
jurisdiction.
(iii) All the outstanding shares of capital
stock of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. (Section Mark) 55, as amended)
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are owned,
directly or indirectly, by the Corporation free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests,
claims, liens or encumbrances.
(iv) This Agreement has been duly authorized,
executed and delivered by the Corporation and constitutes
a legal, valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may
be limited by federal and state securities laws, and
further subject to 12 U.S.C. (Section Mark) 1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy underlying all such laws).
(v) Each of the Indentures has been duly
authorized, executed and delivered, has been duly
qualified under the 1939 Act, as applicable, and
constitutes a legal, valid and binding instrument
enforceable against the Corporation in accordance with
its terms, and the Notes have been duly authorized and,
when the terms of the Notes have been established and
when the Notes have been completed, executed,
authenticated and delivered in accordance with the
provisions of the applicable Indenture, the applicable
Board Resolutions and this Agreement against payment of
the consideration therefor, will constitute legal, valid
and binding obligations of the Corporation entitled to
the benefits of such Indenture, subject (with respect to
each of the Indentures and the Notes) as to enforcement
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of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to 12 U.S.C. (Section Mark) 1818(b)(6)(D) and
similar bank regulatory powers and to the application of
principles of public policy underlying all such laws.
(vi) The forms of Notes attached to the
Secretary's Certificate delivered to the Agents conform
in all material respects to the description thereof
contained in the Prospectus, as supplemented or amended.
(vii) The Registration Statement has become
effective under the 1933 Act; to the best knowledge of
such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other
than the financial statements and other financial and
statistical information contained therein or incorporated
by reference therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act
and the 1934 Act and the respective rules thereunder.
(viii) To the best knowledge of such counsel,
except as disclosed in the Registration Statement or the
Prospectus, there is no pending or threatened action,
suit or proceeding before or by any court or governmental
agency, authority or body or any arbitrator involving the
Corporation or any of the Subsidiaries, of a character
required to be disclosed in the Registration Statement,
which is not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(ix) To the best knowledge of such counsel,
neither the issuance and sale of the Notes, the
consummation of any other of the transactions
contemplated by this Agreement nor the fulfillment of the
terms thereof will conflict with, result in a breach of,
or constitute a default under the Restated Articles of
Incorporation or the Amended and Restated Bylaws of the
Corporation or, to the best of such counsel's knowledge,
the terms of any material indenture or other agreement or
instrument known to such counsel and to which the
Corporation or any of the Subsidiaries is a party or
bound, or any order or regulation known to such counsel
to be applicable to the
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Corporation or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Corporation or
any of the Subsidiaries.
(x) To the best knowledge of such counsel,
no authorization, order, approval or consent of, or
filing with, any court or governmental authority or
agency is necessary or required in connection with the
sale of the Notes hereunder, except such as have been
obtained under the 1933 Act or the 1933 Act Regulations
and such as may be required under foreign or state
securities or insurance laws in connection with the
distribution of the Notes.
In rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or the
United States, to the extent deemed proper and specified in
such opinion, upon counsel for the Agents or upon the opinion
of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Agents; and (B) as to
matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Corporation and the
Subsidiaries and public officials.
(2) Opinion of Counsel to the Agents. The
opinion of Xxxxxxx & Xxxxxxx & Xxxxx, counsel to the Agents,
covering the matters referred to in subparagraph (1) under the
subheadings (iv) through (vii), inclusive, above.
In rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Corporation or upon the opinion
of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Corporation; and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Corporation and
the Subsidiaries and public officials.
(3) In giving their opinions required by
subsections (a)(1) and (a)(2) of this Section, but without
opining in connection therewith, Xxxxx Xxxxx Mulliss & Xxxxx,
L.L.P. and Stroock & Xxxxxxx & Xxxxx shall each additionally
state that although they have not independently verified, are
not passing upon and assume no responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement, such counsel has no reason to
believe that the Registration Statement or any amendment
thereof at the time it became effective, or that the
Prospectus, as amended or supplemented, contained any untrue
statement of a
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material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(b) Officer's Certificate. On the date hereof, the
Agents shall have received a certificate of the Chairman and Chief
Executive Officer or a Senior Vice President and the Chief
Financial or Chief Accounting Officer of the Corporation, dated as
of the date hereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, 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 Corporation and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in
the Prospectus, as supplemented or amended, (ii) the other
representations and warranties of the Corporation contained in
Section 2 hereof are true and correct in all material respects with
the same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Corporation has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the date
of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by
the SEC.
(c) Comfort Letter. On the date hereof, the Agents
shall have received a letter from Price Waterhouse LLP
("Price Waterhouse") dated as of the date hereof and in form
and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with
respect to the Corporation and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the Corporation and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus 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 procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
13
(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Corporation and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to
the date of delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public Accountants
for a review of interim financial information as
described in SAS NO. 71, Interim Financial Information,
on the unaudited condensed consolidated interim financial
statements of the Corporation and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the
unaudited interim financial data, if any, for the period
from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement
and Prospectus to the date of the latest available
interim financial data; and
(c) Making inquiries of certain officials of
the Corporation who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Corporation and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for
14
the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter, there
was any change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Corporation and
the subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the Registration
Statement and Prospectus discloses have occurred or may
occur, or Price Waterhouse shall state any specific
changes or decreases.
(iv) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price
Waterhouse, and has found such amounts, percentages and
financial information to be in agreement with the
relevant accounting, financial and other records of the
Corporation and its subsidiaries identified in such
letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any purchase of Notes by an Agent
as principal, counsel to the Agents shall have been furnished with
such documents and opinions as such counsel may reasonably require
for the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated, or in order to evidence
the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained
herein; and all proceedings taken by the Corporation in connection
with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to such Agent and to counsel to
the Agents.
If any condition specified in this Section 5 shall not
have been fulfilled in all material respects when and as required
to be fulfilled, this Agreement may be terminated by the Agents by
notice to the Corporation at any time 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(h) hereof, the provisions concerning payment of
expenses under Section 9 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, the provisions concerning
the representations, warranties and agreements to survive delivery
set forth in Section 10 hereof and the provisions regarding parties
set forth under Section 15 hereof shall remain in effect.
15
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through an Agent as agent shall
be made by the Corporation 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 Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has
theretofore paid the Corporation for such Note, the Corporation
will promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the
Corporation's account. Unless otherwise agreed between the
Corporation and the Agent, all Notes will be issued in book-entry
only form and will be represented by one or more fully registered
global securities.
SECTION 7. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents
that:
(a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes, and
each delivery of Notes to an Agent pursuant to a sale of Notes to
such Agent as principal, shall be deemed to be an affirmation that
the representations and warranties of the Corporation contained in
this Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the
time of delivery to the purchaser or his agent, or to such Agent,
of the Note or Notes relating to such acceptance or sale, 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 (i) there is filed with the SEC any Quarterly Report on Form
10-Q or Annual Report on Form 10-K that is incorporated by
reference into the Prospectus, or (ii) if required by the Agents,
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 or maturity dates of
Notes or similar changes, an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or,
except as hereinbefore described, an amendment or supplement
resulting from the filing of any document incorporated by reference
therein), the Corporation shall furnish or cause to be furnished to
the Agents forthwith a certificate of the Chairman and Chief
Executive Officer, any Senior
16
Vice President, the Chief Financial Officer, the Chief Accounting
Officer or Treasurer of the Corporation dated the date of filing
with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form
satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents are true and correct at the
time of such filing, amendment or supplement, 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 5(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 (i) there is filed with the SEC any Annual Report on Form
10-K, (ii) if required by the Agents, there is filed any Quarterly
Report on Form 10-Q, or (iii) if required by the Agents, 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 or maturity dates of the
Notes or similar changes or solely for the inclusion of additional
financial information, an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or,
except as hereinbefore described, an amendment or supplement
resulting from the filing of any document incorporated by reference
therein), the Corporation shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents the written
opinions of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., counsel to the
Corporation, and Xxxx X. Xxxxxxx, General Counsel to the
Corporation, or other counsel satisfactory to the Agents, dated the
date of filing with the SEC of such supplement or document or the
date of effectiveness of such amendment, as the case may be, in
form and substance satisfactory to the Agents, of the same tenor as
the opinions referred to in Section 5(a)(1) 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 opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents
with a letter substantially to the effect that the Agents may rely
on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time
that (i) there is filed with the SEC any Annual Report on Form
10-K, (ii) if required by the Agents, there is filed with the SEC
any Quarterly Report on Form 10-Q or (iii) if required by the
Agents,
17
the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information
(other than an amendment or supplement resulting from the filing of
a Current Report on Form 8-K that is incorporated by reference
therein), the Corporation shall cause Price Waterhouse forthwith to
furnish the Agents a letter, dated the date of effectiveness of
such amendment, supplement or document filed with the SEC, as the
case may be, in form satisfactory to the Agents, of the same tenor
as the portions of the letter referred to in clauses (i) and (ii)
of Section 5(c) hereof 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 Section
5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the
accounting records of the Corporation; provided, however, that if
the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for
a fiscal quarter, Price Waterhouse may limit the scope of such
letter to the unaudited financial statements included in such
amendment or supplement. If any other information included therein
is of an accounting, financial or statistical nature, the Agents
may request procedures be performed with respect to such other
information. If Price Waterhouse is willing to perform and report
on the requested procedures, such letter should cover such other
information. Any letter required to be provided by Price
Waterhouse hereunder shall be provided within five business days of
the filing of the Annual Report on Form 10-K or, with respect to
any letter required by the Agents pursuant to subparagraph (ii) or
(iii) hereof, the request by the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold
harmless each Agent 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, 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 as originally
filed or in any amendment thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any 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
18
agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; provided, however, that (i) the Corporation will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Corporation by or on behalf of
any Agent specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Prospectus
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 did not receive a copy of the
Prospectus as amended or supplemented in connection with the sale
of such Notes 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 the Prospectus was corrected in the Prospectus as amended or
supplemented. This indemnity agreement will be in addition to any
liability which the Corporation may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Corporation, each of its directors, each of its
officers who signs the Registration Statement and each person who
controls the Corporation within the meaning of either the 1933 Act
or the 1934 Act, to the same extent as the foregoing indemnity from
the Corporation to each Agent, but only with reference to written
information relating to such Agent furnished to the Corporation by
or on behalf of such Agent specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Agent may otherwise have. The Corporation acknowledges that the
statements set forth in the last two paragraphs on the cover page
and under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information furnished
in writing by or on behalf of the several Agents for inclusion in
the documents referred to in the foregoing indemnity, and you, as
the Agents, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 8. 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
19
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 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 this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in 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 counsel, approved by the Agent in the case of
subparagraph (a), representing the indemnified parties under
subparagraph (a) 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 or (iii)
the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such clause
(i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its terms
but is for any reason held by a court to be unavailable from the
Corporation on the grounds of policy or otherwise, the Corporation
and the Agents shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) to which the Corporation and one or more of the Agents may be
subject in such proportion so that each Agent is responsible for
that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent bears
to the total sales price from the sale of Notes sold to or through
the Agents to the date of such liability, and the Corporation is
responsible for the balance; provided, however, that 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
20
misrepresentation. For purposes of this Section 8, each person who
controls any Agent within the meaning of the 1933 Act shall have
the same rights to contribution as such Agent, and each person who
controls the Corporation within the meaning of either the 1933 Act
or the 1934 Act, each officer of the Corporation who shall have
signed the Registration Statement and each director of the
Corporation shall have the same rights to contribution as the
Corporation, subject in each case to the provisions of this
paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
SECTION 9. Payment of Expenses.
The Corporation will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to the use
of book-entry notes;
(d) The fees and disbursements of the Corporation's
accountants and counsel, of the Trustees and their counsel, and of
any registrar, transfer agent, paying agent or calculation agent;
(e) The reasonable fees and disbursements of counsel
to the Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state
securities or insurance laws in accordance with the provisions of
Section 4(i) hereof, including filing fees and the reasonable 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 printing and delivery to the Agent in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the Agent of the
21
Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and
delivery to the Agents of copies of the Indentures and all
supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating
of the Notes;
(j) The fees and expenses incurred in connection with
the listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(n) The fees and expenses of any depository and any
nominees thereof in connection with the Notes.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the
Corporation submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or
on behalf of any Agent or any controlling person of any Agent, or
by or on behalf of the Corporation, and shall survive each delivery
of and payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any agreement hereunder by an Agent to purchase Notes as
principal) may be terminated for any reason, with respect to one or
more, or all, of the Agents, at any time by either the Corporation
or one or more of the Agents upon the giving of 30 days' written
notice of such termination to the other party hereto. Any
termination by the Corporation of this Agreement with respect to
one or more, but less than all, of the Agents shall be effective
with respect to such designated Agents only, and the Agreement will
remain in force and effect with respect to any other Agents who
remain parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent may terminate any agreement hereunder
by such Agent to purchase Notes as principal, immediately
upon notice to the
22
Corporation at any time prior to the Settlement Date relating
thereto, (i) if there has been, since the date of such agreement or
since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Corporation and its
subsidiaries considered as one enterprise, or (ii) if there shall
have occurred, since the date of such agreement, any outbreak or
material escalation of hostilities or other national or
international calamity or crisis the effect of which is such as to
make it, in the judgment of such Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in securities generally
on the New York Stock Exchange shall have been suspended or
limited, or (iv) if, since the date of such agreement, a banking
moratorium shall have been declared by either Federal or New York
authorities.
If, after the date of an agreement hereunder to
purchase Notes as principal and prior to the Settlement Date with
respect to such agreement, the rating assigned by Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc. or Xxxxx'x Investors
Service, Inc. as the case may be, to any debt securities of the
Corporation shall have been lowered or if either of such rating
agencies shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any debt securities of the Corporation, then the
Corporation and the Agent mutually shall determine whether the
terms of such agreement to purchase Notes shall need to be
renegotiated and, if so, shall so negotiate in good faith the
revised terms of such agreement to purchase Notes. In the event
that the Corporation and the Agent reasonably fail to agree on any
such revised terms, then either the Corporation or the Agent may
terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this
Section 11, or following the Settlement Date in connection with a
sale to or through an Agent appointed on a one-time basis, neither
party will have any liability to the other party hereto, except
that (i) the Agents shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(b) hereof, (ii) if
at the time of termination (a) any Agent shall own any Notes
purchased by it as principal with the intention of reselling them
or (b) an offer to purchase any of the Notes has been accepted by
the Corporation but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof,
the provisions of Section 9 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, and the provisions of
Sections 10, 14 and 15 hereof shall remain in effect.
23
SECTION 12. Additional Agents.
The Corporation may from time to time designate
additional agents to participate in the sale of Notes as principal
or agent hereunder. Such agency participation may be either on an
on-going basis or on a one time basis for a single transaction.
Such agents shall become a party to this Agreement and shall
thereafter be subject to the provisions hereof and entitled to the
benefits hereunder upon the execution of a counterpart hereof or
other form of acknowledgement of its appointment hereunder,
including the form of letter attached hereto as Exhibit D, and
delivery to the Corporation of addresses for notice hereunder and
under the Procedures. After the time an Agent is appointed, the
Corporation shall deliver to the Agent copies of these documents
earlier delivered to other Agents under Sections 5(a), 5(b) and
5(c) and, if such appointment is on an on- going basis, Sections
7(b), 7(c) and 7(d) hereof.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram.
Notices to the Corporation shall be delivered to it at the address
specified below and notices to any Agent shall be delivered to it
at the address set forth on Exhibit A.
If to the Corporation:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Corp. Treas. Div. NC1-007-23-01
Attention: Xxxx X. Xxxx, Treasurer
Telecopy: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxx
General Counsel
NationsBank Corporation
NationsBank Corporate Center
Legal Department, NC1007-20-01
Charlotte, North Carolina 28255
Telecopy: (000) 000-0000
Xxxxx Xxxxx Xxxxxxx & Xxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
24
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. Governing Law; Counterparts.
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 applicable to agreements made and
to be performed in such State. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be
binding upon the Agents and the Corporation 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 Section 8 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 contained. This
Agreement and all conditions and provisions hereof 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.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Corporation a counterpart hereof, whereupon this instrument along
with all
25
counterparts will become a binding agreement between the
Agents and the Corporation in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:
Name:
Title: Senior Vice President and
Treasurer
Accepted:
NationsBanc Capital Markets, Inc.
By:
Name:
Title: Director
[Signatures By Agents To Follow]
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[Signature Page for Agents]
27
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
7th Floor, NC1-007-01-01
Charlotte, North Carolina 28255-0065
Telecopy: (000) 000-0000
With a copy to:
Stroock & Xxxxxxx & Xxxxx
Seven Hanover Square
New York, New York 10004
Attention: Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
[Names and Addresses of Additional Agents]
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EXHIBIT B
The following terms, if applicable, shall be agreed to
by an Agent and the Corporation in connection with each sale of
Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
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EXHIBIT C
As compensation for the services of an Agent hereunder,
the Corporation shall pay it, on a discount basis, a commission for
the sale of each Note by such Agent which, unless otherwise agreed
between the Corporation and Agent, shall be equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
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 30 years . . . . . . . . . . . . .750
The commission for Notes with a maturity more than 30 years or sold
to one or more Agents as principal also is subject to negotiation
between the Corporation and the Agent at the time of sale.
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EXHIBIT D
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term
Senior/Subordinated Notes, Series __, by NationsBank
Corporation
Dear __________:
The Master United States Distribution Agreement dated
_____________, 1995 (the "Agreement"), among NationsBank
Corporation ("NationsBank") and the Agents named therein, provides
for the issue and sale by NationsBank of its Medium Term Notes,
Series ___.
Subject to and in accordance with the terms of the Agreement
and accompanying Administrative Procedures, NationsBank hereby
appoints you as Agent (as such term is defined in the Agreement) in
connection with the purchase of the notes as described in the
accompanying Pricing Supplement No. ___, dated ___________, 199__,
(the "Notes") but only for this one reverse inquiry transaction.
Your appointment is made subject to the terms and conditions
applicable to Agents under the Agreement and terminates upon
payment for the Notes or other termination of this transaction.
Accompanying this letter is a copy of the Agreement, the provisions
of which are incorporated herein by reference. Copies of the
officer's certificate, opinions of counsel, and auditors' letter
described in the Agreement are not enclosed but are available upon
your request.
This letter agreement, like the Agreement, is governed by
and construed in accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our
agreement, please sign and return this letter to us by settlement
date. This action will confirm your appointment and your
acceptance and agreement to act as Agent in connection with the
issue and sale of the above described Notes under the terms and
conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
NATIONSBANK CORPORATION [Name of Agent]
By:____________________ By:_____________________
Name:__________________ Name:___________________
Title:_________________ Title:__________________
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