EXHIBIT 1
WACHOVIA CORPORATION
$_________
____% _________ Notes due ________,____
UNDERWRITING AGREEMENT
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________,____
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
[OTHER NAMES]
as the Several Underwriters
c/o Merrill Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Wachovia Corporation, a North Carolina corporation (the "Company"),
confirms its agreement (the "Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $_________
aggregate principal amount of ____% _______ Notes due _______,____ (the
"Notes").
The Underwriters, who may be members of an underwriting syndicate
managed by Xxxxxxx Xxxxx, have each agreed to the provisions contained in the
Xxxxxxx Xxxxx Agreement Among Underwriters for Global Bonds dated as of _______,
____.
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The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered. The Notes will be issued pursuant to
an indenture, dated as of _______, ____ (the "Indenture"), between the Company
and The Chase Manhattan Bank, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-59165) (the "First
Registration Statement"), Post-Effective Amendment No. 1 to the First
Registration Statement and a Registration Statement on Form S-3 (No. 333-_____)
(the "Second Registration Statement"), which constitutes Post-Effective
Amendment No. 2 to the First Registration Statement, for the registration of
debt securities (including the Notes) 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 Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statements, as
amended, have been declared effective by the Commission, and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statements, as amended, including the information, if
any, deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), are collectively referred to herein as
the "Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Notes, in the form first furnished to
the Underwriters by the Company for use in connection with the offering of the
Notes, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities and Exchange Act of 1934, as amended
(the "1934 Act"), prior to the execution of this Agreement. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of underwriting
agreement. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
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Section 1. Representations and Warranties. The Company represents
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and warrants to each Underwriter as of the date hereof and as of the Closing
Time (as hereinafter defined) as follows:
(i) At the time the Registration Statement became effective and
as of the date hereof, the Registration Statement complied 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 Commission under the
1939 Act (the "1939 Act Regulations"), and did 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 statements therein not
misleading. The Prospectus, as of its issue date and at Closing Time, does
not and will not include 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, the Company makes no representations or warranties as to
(A) that part of the Registration Statement which constitutes the Statement
of Eligibility and Qualification (Form T-1) under the 1939 Act of the
Trustee or (B) the information contained in the statements set forth under
the heading "Underwriting" in the Prospectus Supplement. Notwithstanding
the foregoing, the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriters expressly for use
in the Registration Statement or the Prospectus.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations").
(iii) To the best knowledge of the Company, Ernst & Young,
LLP, the accountants who certified the financial statements and supporting
schedules included in or incorporated by reference into the Registration
Statement, are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Company is not, and upon the issuance of the Notes as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(vi) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance of the Notes, except such
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as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws and the qualification of the Indenture under the 1939 Act.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business.
(viii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
North Carolina with corporate power to own, lease and operate its
properties and to conduct its business as described in the Prospectus, to
enter into and perform its obligations under this Agreement, the Indenture
and the Notes; the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character or location of its
properties or the nature or the conduct of its business requires such
qualification, except for any failures to be so qualified or in good
standing which, taken as a whole, are not material to the Company and its
subsidiaries, considered as one enterprise.
(ix) Wachovia Bank, National Association ("Wachovia Bank") is a
national banking association duly organized and validly existing under the
laws of the United States, continues to hold a valid certificate to do
business as such and has full power and authority to conduct its business
as such and to own, lease and operate its properties and is duly authorized
to transact business and is in good standing in each jurisdiction in which
it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that the
failure to so qualify or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(x) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
the Indenture conforms to all statements relating thereto contained in the
Prospectus; and the Indenture has been duly qualified under the 0000 Xxx.
(xi) The Notes have been duly authorized by the Company and
have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment therefor
as described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform to all statements relating
thereto in the Prospectus.
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(xii) The execution, delivery and performance of this
Agreement, the Indenture and the Notes and the consummation of the
transactions contemplated herein and therein and compliance by the Company
with its obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or Wachovia Bank pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or Wachovia Bank is a party or by which it or either of them may be
bound, or to which any of the property or assets of the Company or Wachovia
Bank is subject (except for conflicts, breaches and defaults which would
not, individually or in the aggregate, be materially adverse to the Company
and its subsidiaries taken as a whole or materially adverse to the
transactions contemplated by this Agreement), nor will such action result
in any material violation of the provisions of the articles of
incorporation or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(xiii) There is not pending or threatened any action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein).
Section 2. Sale and Delivery to Underwriters; Closing.
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(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
principal amount of the Notes set forth in Schedule A hereto opposite the name
of such Underwriter at a purchase price of _____% of the principal amount of the
Notes, plus any additional number of Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price, and delivery of certificates, for
the Notes shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, or at such
other place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. New York time on the third business day after the date hereof, or
such other time not later than ten business days after such date as shall be
agreed upon by the Underwriters and the Company (such time and date of payment
and delivery being herein called "Closing Time"). Payment shall be made to the
Company by wire transfer or certified or official bank check of same day funds
payable to the order of the Company, against delivery to the Underwriters of
certificates for the Notes to be purchased by it (unless such Notes are issuable
only in the form of one or more global securities registered in the name of a
depository or a nominee of a depository, in which event the Underwriters'
interest in such global certificate shall be noted in a manner satisfactory to
the
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Underwriters and their counsel). Unless otherwise agreed, certificates for the
Notes shall be deposited with a custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Section 3. Covenants of the Company. The Company covenants with
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each Underwriter as follows:
(a) The Company will notify the Underwriters promptly, and confirm the
notice in writing, (i) of any amendment to the Registration Statement (including
any post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company 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) The Company will give the Underwriters notice of its intention to
file or prepare (i) any amendment to the Registration Statement (including any
post-effective amendment), (ii) any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Notes), or (iii) any
document that would as a result thereof be incorporated by reference in the
Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any such amendment, supplement or other
document within a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment, supplement or
other document or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object. Subject to the foregoing, the
Company will file the Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day following the
execution and delivery of this Agreement.
(c) The Company will deliver to the Underwriters as many signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) as the
Underwriters may reasonably request and will also deliver to the Underwriters a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits).
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as amended or supplemented) as the
Underwriters may reasonably request for the purposes contemplated by the 1933
Act or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Notes, any event shall occur as a
result of which the Prospectus as then amended or supplemented will include any
untrue statement of a material fact
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or omit to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading or if it
shall be necessary to amend or supplement the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company will,
subject to paragraph (b) above, promptly prepare and file with the Commission
such amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and the Company will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Notes for offering and sale under the applicable securities laws
of such states and the other jurisdictions of the United States as the
Underwriters may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified.
(g) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (which need not
be audited) of the Company and its subsidiaries, covering an applicable period
beginning not later than the first day of the Company's fiscal quarter next
following the "Effective Date" (as defined in Rule 158(c) under the Act) of the
Registration Statement, which will satisfy the provisions of Section 11(a) of
the 1933 Act.
(h) Until the business day following the Closing Time, the Company
will not, without the consent of the Underwriters, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the 1933
Act.
(i) The Company will make application for listing of the Notes on the
Luxembourg Stock Exchange and will endeavor to meet all other requirements of
the Luxembourg Stock Exchange necessary to effect such listing.
Section 4. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this Agreement, including:
(i) the printing and filing of the Registration Statement, with the Commission
and with the Luxembourg Stock Exchange, as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Notes, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Notes under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for
the Underwriters, in connection therewith and in connection with the preparation
of any blue sky survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc., if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture; (ix) any fees payable in connection
with the rating of
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the Notes; (x) the cost and charges of any transfer agent or registrar and (xi)
the cost of qualifying the Notes with DTC.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 8 hereof, the Company shall reimburse the
Underwriters for all of its reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained or in
certificates of officers of the Company, to the performance by the Company of
their obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the 1933 Regulations and in accordance
with Section 3(b) and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of either
Xxxxxxx X. XxXxxxxxxx, General Counsel of the Company, or Xxxxxxx X. Xxxxxx,
Xx., Senior Vice President, Counsel and Secretary of the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company 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, conduct its
business as described in the Prospectus and perform its obligations under
this Agreement, and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended.
(ii) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise.
(iii) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus and all of
the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
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(iv) Wachovia Bank is a national banking association duly
organized and validly existing under the laws of the United States,
continues to hold a valid certificate to do business as such and has full
power and authority to conduct its business as such.
(v) Wachovia Bank has the authority under the laws of the
United States to own, lease and operate its properties and to conduct its
business and is duly authorized to transact business and is in good
standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be in
good standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise; and all of the outstanding
shares of capital stock of Wachovia Bank have been duly authorized and
validly issued and are fully paid and non-assessable (except as otherwise
provided in 12 U.S.C. Section 55), and all of such shares are owned of
record and, to the best knowledge of such counsel, beneficially by the
Company, directly or through one or more subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind known to such counsel, and none of such shares was issued in
violation of the preemptive rights of any stockholder of Wachovia Bank.
(vi) To the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
Wachovia Bank, 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 Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(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 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations.
(viii) The Underwriting Agreement and the Indenture have been
duly authorized, executed and delivered by the Company, and the Indenture
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, and has been duly
qualified under the 1939 Act.
(ix) The Notes have been duly authorized for issuance by the
Company; and the Notes, when executed, authenticated and delivered in the
manner provided for in the Indenture and paid for in accordance with this
Agreement, will constitute valid and binding
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obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms.
(x) The Notes conform in all material respects to the
description thereof contained in the Prospectus.
(xi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein, except as such have been
obtained under the 1933 Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution
of the Notes by the Underwriters and such other approvals (specified in
such opinion) as have been obtained.
(xii) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate and fairly discuss in all material
respects the information required to be shown.
(xiii) To the best knowledge of such counsel, no default
exists in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Prospectus.
(xiv) The statements in the Prospectus under the caption
"Description of Securities" and "Description of Notes", to the extent that
such statements constitute matters of law or legal conclusions, have been
reviewed by such counsel, or attorneys in such counsel's office working
under such counsel's direction, and are accurate and fairly present the
information disclosed therein in all material respects.
(xv) The execution and delivery of each of this Agreement and
the Indenture by the Company, the issuance and delivery of the Notes and
the consummation by the Company of the transactions contemplated in this
Agreement and in the Prospectus and compliance by the Company with the
terms of each of this Agreement, the Indenture and the Notes do not and
will not result in any violation of the charter or by-laws of the Company
or Wachovia Bank, and do not and will not conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or Wachovia Bank
under (A) any indenture, mortgage or loan agreement, or any other agreement
or instrument known to such counsel, to which the Company or Wachovia Bank
is a party or by which it may be bound or to which any of its properties
may be subject, (B) any existing applicable law, rule or regulation (other
than the securities or blue sky laws of the various states, as to which
such counsel need express no opinion), or (C) any judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or Wachovia Bank or any of
its properties.
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(xvi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of the
dates they were filed with the Commission and as of the date of this
Agreement, appear on their face to have been appropriately responsive in
all material respects to the requirements of the 1934 Act and the rules and
regulations promulgated thereunder.
(xvii) Nothing has come to such counsel's attention which
would lead such counsel to believe (A) that the Registration Statement
(except for the financial statements and related schedules included therein
or omitted therefrom, as to which such counsel need express no opinion), on
the original effective date of the Registration Statement or on the date of
the Underwriting Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) that the
Prospectus (except for the financial statements and related schedules
included therein or omitted therefrom, as to which such counsel need
express no opinion), at the time the Prospectus was issued or as of the
Closing Time, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or (C) that the documents incorporated by reference
in the Prospectus (except for the financial statements and related
schedules included therein or omitted therefrom, as to which such counsel
need express no opinion, and except to the extent that any statement
therein is modified or superseded in the Prospectus), as of the dates they
were filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(xviii) The Company is not, and upon the issuance and sale of
the Notes as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus, will not be, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
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 the opinion of other counsel of good standing believed to
be reliable and who are satisfactory to counsel for the Underwriters; and (B) as
to matters of fact, to the extent deemed proper, on the representations and
warranties of the Company contained herein, the Indenture or on certificates of
responsible officers of the Company and its subsidiaries and public officials.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the legal existence of the
Company, the Indenture, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Underwriters may require.
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In giving its opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to
certain matters of North Carolina law upon the opinion of either Xxxxxxx X.
XxXxxxxxxx, General Counsel of the Company, or Xxxxxxx X. Xxxxxx, Xx., Senior
Vice President, Counsel and Secretary of the Company, which shall be delivered
in accordance with Section 5(b)(1) hereto.
(3) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of a Senior Vice President of the Company and of the
chief financial or chief accounting officer of the Company, and dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(4) At the Closing Time, Ernst & Young LLP shall have furnished to the
Underwriters a letter or letters (which may refer to letters previously
delivered to the Underwriters), dated as of the Closing Time, in form and
substance satisfactory to the Underwriters, confirming that the response, if
any, to Item 10 of the Registration Statement is correct insofar as it relates
to them and stating in effect that:
(i) They are independent accountants within the meaning of the
1933 Act and the 1934 Act and the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) In their opinion, the consolidated financial statements of
the Company 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:
(A) Reading the minutes of the meetings of the shareholders, the board
of directors, executive committee and audit committee of the Company 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 Company and its
consolidated subsidiaries included or incorporated by
13
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 Company 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 1934 Act 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) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, in or incorporated in the Registration Statement
and the Prospectus, there were any changes, at a specified date not
more than 3 business days prior to the date of the letter, in the
long-term debt (including capital lease obligations) of the Company
and its subsidiaries or capital stock of the Company (other than
issuances of capital stock upon exercise of options and stock
appreciation plans which were outstanding on the date of the latest
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus) or decreases in the
shareholders' equity of the Company as compared with the amounts shown
on the most recent consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in net interest income,
net interest income after provision for loan losses or in income
before income taxes, or in the total or per-share amount of net income
of the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Underwriters.
(iv) The letter shall also state that Ernst & Young LLP 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
14
the Registration Statement and Prospectus and which are specified by the
Underwriters and agreed to by Ernst & Young LLP, and has 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.
In addition, at the time this Agreement is executed, Ernst & Young LLP
shall have furnished to the Underwriters a letter or letters, dated the date of
this Agreement, in form and substance satisfactory to the Underwriters, to the
effect set forth in this subsection 4.
(5) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment 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 satisfactory in form and substance to the Underwriters and Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters.
(6) At Closing Time, the Notes are rated A+ by Standard & Poor's
Rating Services and A1 by Xxxxx'x Investor Service and there shall not have
occurred any decrease in the ratings of any of the securities of the Company or
the Notes by any nationally recognized statistical rating organization, and no
such organization shall have publicly announced that it has under surveillance
or review its rating of any of the Company's securities or any of the Notes.
(c) At or before Closing Time the Notes shall have been accepted for
listing on the Luxembourg Stock Exchange and the Company shall have provided
evidence satisfactory to the Underwriters of such listing.
(d) At Closing Time there shall not have been a change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in the view of the Underwriters be likely to
prejudice materially the success of the offering and distribution of the Notes
or dealings in the Notes in the secondary market.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 7, and 8 shall survive any such termination and will remain in full
force and effect.
Section 6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each of its partners, officers, directors, and employees and each person, if
any, who controls any Underwriter within the meaning of the 1933 Act or the 1934
Act against any losses, claims, damages or liabilities, and any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Notes), which arises
out
15
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Registration Statement, or any amendment or
supplement thereto, (B) the Prospectus and any amendment or supplement thereto,
or (C) any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the Notes
under the securities or blue sky laws thereof (each, an "Application") or (ii)
the omission or alleged omission to state in the Registration Statement, or any
amendment or supplement thereto, the Prospectus or any amendment or supplement
thereto, or any Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse as
incurred each Underwriter and each such controlling person for any legal and
other expenses incurred in investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable to any Underwriter in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, any untrue
statement or alleged untrue statement made in the Prospectus, including any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Underwriter specifically for inclusion and actually included therein; and
provided further that, as to any Prospectus that has been amended or
supplemented as provided herein, this indemnity agreement shall not inure to the
benefit of any Underwriter on account of any loss, claim, damage, liability or
action arising out of the sale of Notes to any person by such Underwriter if (A)
such Underwriter failed to send or give a copy of the final Prospectus as so
amended or supplemented to that person 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 (B) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in any
preliminary Prospectus was corrected in an amendment or supplement thereto (but
only if the sale to such person occurred after the Company provided such
Underwriter and the Underwriter received copies of such amendment or supplement
for distribution). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and each of the Company's directors, each of its
officers and each person, if any, who controls the Company within the meaning of
the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by such Underwriter and
specifically included in the Prospectus. This indemnity shall be in addition to
any liability which such Underwriter may otherwise have. The Company
acknowledges that the statements set forth under the heading "Underwriting" in
the Prospectus Supplement constitute the only information furnished in writing
by the several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 6, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party or
parties will not relieve it or them from any liability which it or they may
16
have to any indemnified party otherwise than under subsection (a) or (b) of this
Section 6 or to the extent that the indemnifying party was not adversely
affected by such omission. In case any such action is brought against an
indemnified party and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
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 one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Underwriters in the case of paragraph (a) of this Section 6,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions), or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party, which will not be unreasonably
withheld, unless such indemnified party waived its rights under this Section 6
in writing in which case the indemnified party may effect such a settlement
without such consent.
(d) If the indemnification provided for in the preceding paragraphs of
this Section 6 is unavailable or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then the
Company or the Underwriters 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 Company and the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the total
discounts and/or commissions received by the Underwriters bears to the sum of
such discounts and/or commissions and the purchase price of the Notes specified
on the cover page of the Prospectus and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter be
responsible for any amount in excess of the total discounts and/or commissions
received by it with respect to the Notes purchased by such Underwriter under
this Agreement and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be
17
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the 1933 Act or the 1934 Exchange Act, each officer
of the Company and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (y) 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 7. 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 submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company and shall survive delivery of the
Notes to the Underwriters.
Section 8. Termination of Agreement.
------------------------
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this 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 or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Notes or to enforce contracts for the
sale of the Notes, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the applicable exchange, or
if trading generally on the New York Stock Exchange, the American Stock Exchange
or on the NASDAQ National Market has been suspended, limited or restricted or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges or such system or by
order of the Commission, the NASD or any governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New York or North
Carolina authorities, or (v) if there has been any decrease in the ratings of
any of the securities of the Company or of the Notes by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or if any such organization shall have publicly announced
that it has under surveillance or review its rating of any of the Company's
securities or any of the Notes.
18
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and except that Sections 1, 6, and 7 shall survive
any such termination and will remain in full force and effect.
Section 9. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at Closing Time to purchase the Notes that
it or they are obligated to purchase under this Agreement (the "Defaulted
Notes"), the lead Underwriter shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the lead Underwriter shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10% of the Notes,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Notes exceeds 10% of the Notes, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the lead Underwriter shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
Section 10. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, North Tower, World Financial Center, New York, New York 10281-
1209, attention of Syndicate Department; notices to the Company shall be
directed to it at Wachovia Corporation, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx-Xxxxx,
Xxxxx Xxxxxxxx 00000, attention of Xxxxxxx X. Xxxxxx, Xx., Esq.
Section 11. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Underwriters 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
Underwriters and the Company and their respective successors and the controlling
persons and officers, directors and trustees referred to in Section 6 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 Underwriters and the Company
19
and their respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 12. Governing Law and Time. This Agreement 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 said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
Section 13. 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 respective counterparts shall together
constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
WACHOVIA CORPORATION
By:_______________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:______________________________________________
Authorized Signatory
For itself and the other Underwriters
named in Schedule A hereto.
SCHEDULE A
Principal
Name of Underwriter Amount
-------------------- ------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ......................... $
..................................................
..................................................
..................................................
..................................................
..................................................
Total .................................... $
