EXHIBIT 1 (b)
FIRST UNION CORPORATION*
$_________
[____%] [[Senior] [Subordinated]] [[Debentures] [Notes]]
Due _________ __,____
Underwriting Agreement
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________ __, ____
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
First Union Corporation ("First Union"), a North Carolina corporation,
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), its designated debt securities named in Schedule I hereto
(the "Securities"), in the aggregate principal amount set forth in such Schedule
I. The Securities will be issued under the indenture referenced in Schedule I
hereto (the "Indenture"), between First Union and the trustee named in Schedule
I (the "Trustee").
1. Representations and Warranties. First Union represents and
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warrants to, and agrees with, each Under writer that:
(a) The registration statement (File No. 333-_____) on Form S-3 (the
"registration statement"), including a prospectus which, as supplemented,
shall be used in connection with the sale of the Securities, has been filed
with the Securities and Exchange Commission (the "Commission"), in the form
heretofore delivered to
_______________________
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph,
representations, opinions, etc.
the Representatives. The registration statement, as it may have been
amended prior to the date of this Agreement, has become effective under the
Securities Act of 1933, as amended (the "Act"). (The registration
statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement"; such prospectus (which shall
be in the form in which it has been most recently filed, or transmitted for
filing, with the Commission on or before the date of this Agreement, as the
same is proposed to be added to or changed), as supplemented by a
prospectus supplement relating to the Securities, filed or transmitted for
filing with the Commission pursuant to Rule 424 under the Act and used in
connection with the sale of the Securities, is hereinafter referred to as
the "Prospectus"; and such prospectus supplement is hereinafter referred to
as the "Prospectus Supplement". Any reference herein to the Registration
Statement, a preliminary prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement, and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and
any amendments thereof filed prior to the date hereof, as of their
respective effective dates, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, as
of the date of the Prospectus Supplement, and any amendments thereof and
supplements thereto, as of their respective effective or issue dates, will
conform in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder, and no
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such document, as of such respective dates and, in the case of the
Prospectus and any amendments thereof or supplements thereto, as of the
Closing Date (as hereinafter defined), included or will include any untrue
statement of a material fact or omitted or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, provided that First Union makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to
First Union by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Prospectus or any amendment thereof
or supplement thereto.
(c) First Union has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has all power and authority (corporate and other)
necessary to own or hold its material properties and to conduct its
business substantially in the manner in which it presently conducts such
business.
(d) The Securities have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of First Union entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and, at
the Closing Date (as defined in Section 3 hereof), the Indenture will be
duly qualified under the Trust Indenture Act and will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus.
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(e) First Union has all corporate power and authority necessary to
execute and deliver this Agreement, the Indenture and the Securities and to
perform its obligations hereunder and thereunder; the execution, delivery
and performance of this Agreement, the Indenture and the Securities by
First Union and compliance with the provisions hereof and thereof by First
Union will not constitute a breach of or default under, the corporate
charter or by-laws of First Union, or any material agreement, indenture or
other instrument relating to indebtedness for money borrowed to which
First Union is a party, or, to the best of First Union's knowledge, any
law, order, rule, regulation or decree of any court, governmental agency or
authority located in the United States having jurisdiction over First Union
or any property of First Union, which breach or default would be reasonably
likely to have a material adverse effect on First Union and its
subsidiaries taken as a whole; and, no consent, authorization or order of,
or filing or registration with, any court or governmental agency or
authority is required for the execution, delivery and performance of this
Agreement, the Indenture and the Securities by First Union except such as
have been made or obtained or will be made or obtained on or before the
Closing Date (as defined in Section 3) and except such as may be required
under applicable state securities or "blue sky" laws.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, First Union
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from First Union, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and First Union (such date and time of delivery of and payment
for the Securities being herein called the
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"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Under writers through the Representatives of the purchase price thereof
to or upon the order of First Union in the manner and type of funds specified in
Schedule I. Certificates for the Securities shall be registered in such names
and in such denominations as the Representatives may request not less than one
full business day in advance of the Closing Date.
First Union agrees to have the Securities available for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
5. Agreements. First Union agrees with the several Underwriters
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that:
(a) First Union will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424 under the Act and will
promptly advise the Representatives when the Prospectus has been so filed
or transmitted for filing, and, prior to the termination of the offering of
the Securities to which such Prospectus relates, also will promptly advise
the Representatives (i) when any amendment to the Registration Statement
has become effective or any further supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose, and (iv)
of the receipt by First Union of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. First Union will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
reasonably possible the withdrawal
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thereof. For so long as a prospectus relating to the Securities is required
to be delivered under the Act, First Union will not file or transmit for
filing any amendment to the Registration Statement or supplement to the
Prospectus which relates to the Securities unless First Union has furnished
you or counsel for the Underwriters a copy for your review prior to filing
or transmission for filing.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus in connection with the sale of the
Securities to comply with the Act or the rules and regulations of the
Commission thereunder, promptly after becoming aware thereof, First Union
will notify the Representatives or counsel for the Underwriters and, upon
their or its reasonable request, prepare and file or transmit for filing
with the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) First Union will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of First Union during which the filing, or transmission for
filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except
not later than 90 days after the end of such period if such quarter is the
last fiscal quarter), an earnings statement (which need not be audited) of
First Union and its subsidiaries, covering such 12-month period, which
will satisfy the provisions of Section 11(a) of the Act.
(d) First Union will use its best efforts to furnish in New York City
to each of the Underwriters prior to 10:00 a.m., New York City time, on the
New York business day next succeeding the date of this
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Agreement and from time to time, as many copies of the Prospectus, each
related preliminary prospectus supplement and all amendments of and
supplements to such documents as may be reasonably requested.
(e) First Union will pay all expenses incident to the performance of
its obligations under this Agreement, and will pay the expenses of printing
and filing all documents relating to the offering and mailing and
delivering such to Underwriters and dealers, any filing fee incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection
with the sale and delivery of the Securities by First Union to the
Underwriters, and any fees charged for rating the Securities.
(f) First Union will use its reasonable best efforts to arrange for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that First Union shall not be required to qualify to
do business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to
by First Union and set forth in Schedule I hereto relating to the
Securities, First Union will not offer, sell, contract to sell or otherwise
dispose of any of its debt securities which mature more than one year after
the Closing Date and which are substantially similar to the Securities
without the prior written consent of the Representatives.
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6. Conditions to the Obligations of the Underwriters. The
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obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of First Union contained herein as of the date hereof and the Closing
Date, to the accuracy in all material respects of the statements of First Union
made in any certificates pursuant to the provisions hereof, to the performance
in all material respects by First Union of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted and be pending or have been threatened as of the
Closing Date; and all requests for additional information on the part of
the Commission shall have been complied with.
(b) First Union shall have furnished to the Representatives a
certificate, dated the Closing Date, of First Union, signed by the
principal financial or accounting officer of First Union, to the effect
that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of First Union in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and First Union has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date, in all material respects;
(ii) No stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or have been threatened
as of such date;
(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the
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financial position, results of operations, cash flows or prospects
relating thereto of First Union and its subsidiaries consolidated,
except as set forth in or contemplated by the Prospectus; and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded First Union's unsecured debt
securities or preferred stock as described in Section 6(h)(i) and (B)
no announcement has been made with respect to any rating accorded
First Union's unsecured debt securities or preferred stock as
described in Section 6(h)(ii).
(c) First Union shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Xxxx X. Xxxxxxxx, Esq., Senior Vice President
and Deputy General Counsel of First Union, to the effect that:
(i) First Union 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 and authority under such laws
to own its material properties and to conduct its business
substantially as described in the Prospectus;
(ii) The Securities have been duly authorized, executed, issued
and delivered and, assuming authentication by the Trustee in the
manner contemplated in its certificate, constitute valid and legally
binding obligations of First Union entitled to the benefits provided
by the Indenture; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(iii) The Indenture has been duly authorized, executed and
delivered by First Union, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation
of First Union enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent
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transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) First Union has all corporate power and authority necessary
to execute and deliver this Agreement, the Indenture and the
Securities, and to perform its obligations hereunder and there under;
this Agreement has been duly authorized, executed and delivered by
First Union; the execution, delivery and performance of this
Agreement, the Indenture, and the Securities by First Union and
compliance with the provisions hereof and thereof by First Union will
not constitute a breach of or default under, the corporate charter or
by-laws of First Union, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed known to such
counsel to which First Union is a party, or, to the best of such
counsel's knowledge, any law, order, rule, regulation or decree of any
court, governmental agency or authority located in the United States
having jurisdiction over First Union or any property of First Union,
which breach or default would be reasonably likely to have a material
adverse effect on First Union and its subsidiaries taken as a whole;
and no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement, the Indenture or the
Securities by First Union except such as may be required under
applicable state securities or "blue sky" laws or as have been duly
made or obtained; and
(v) The Registration Statement has become effective under the
Act, and, to the best of the 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 are
pending or threatened under the Act, and each part of the Registration
Statement, when such part became
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effective, any amendments thereof filed prior to the date of this
Agreement, as of their respective effective dates, and the
Registration Statement and the Prospectus, as of the date of the
Prospectus Supplement, and each amendment thereof or supplement
thereto, as of their respective effective or issue dates, appeared on
their face to be appropriately responsive in all material respects to
the requirements of the Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder; such
counsel has no reason to believe that any part of the Registration
Statement, when such part became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the
Prospectus Supplement, or any amendments thereof or supplements
thereto, as of their respective effective or issue dates, contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or
that, as of the Closing Date, either the Prospectus or any further
amendment or supplement thereto made by the Company prior to the
Closing Date contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; it being understood that such counsel need express no
opinion as to the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee, as to the financial statements or other
financial data contained in any part of the Registration Statement or
the Prospectus, as to any statements or omissions made in reliance
upon or in conformity with information furnished in writing to First
Union by or on behalf of an Underwriter for use therein.
As to those matters which relate to the Trustee, such counsel may rely
upon the certificate or certificates
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of such Trustee, and as to matters governed by New York law, upon the
opinion of Xxxxxxxx & Xxxxxxxx.
(d) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may reasonably
require.
As to matters governed by North Carolina law, Xxxxxxxx & Xxxxxxxx may
rely upon the opinion of Xxxx X. Xxxxxxxx, Esq., Senior Vice President and
Deputy General Counsel of First Union, delivered pursuant to Section 6(c).
(e) KPMG Peat Marwick LLP, as independent accountants of First Union,
shall have furnished to the Representatives a letter, dated as of the
Closing Date, to the effect set forth in Schedule III hereto.
(f) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the financial position, long-term debt, stockholders' equity or results of
operations of First Union and its consolidated subsidiaries which the
Representatives conclude, after consultation with First Union, in the
judgment of the Representatives is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
(g) First Union shall have furnished to the Representatives such
further information, certificates and documents as they may reasonably
request prior to the Closing Date.
(h) Subsequent to the date of this Agreement, (i) no downgrading
shall have occurred in the rating accorded First Union's unsecured debt
securities or preferred stock by Standard & Poor's Ratings Group or by
Xxxxx'x Investors Service, Inc. and (ii) neither such organization shall
have publicly announced that it has under surveillance or review, with
possible
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negative implications, its rating of any of First Union's unsecured debt
securities or preferred stock.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to First Union in writing or by telephone or telegraph confirmed
in writing.
7. Indemnification and Contribution. (a) First Union agrees to
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indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange 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 Act, the Exchange 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 or in any
amendment thereof filed prior to the date hereof, or in the Registration
Statement or the Prospectus, or in any amendment thereof or supplement thereto,
or in any related preliminary prospectus or preliminary prospectus supplement,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and 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) First Union 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 First Union by
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or on behalf of any Underwriter through the Representatives specifically for use
in the Prospectus or any supplement thereto or any related preliminary
prospectus or preliminary prospectus supplement or of the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee, and (ii)
such indemnity with respect to any related preliminary prospectus or preliminary
prospectus supplement shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented), excluding documents incorporated therein
by reference, at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such related
preliminary prospectus or preliminary prospectus supplement was corrected in
the Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which First Union may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless First Union, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls First Union within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from First Union to each Underwriter, but only with
reference to written information furnished to First Union by or on behalf of
such Underwriter through the Representatives specifically for use in the
Prospectus or any supplement thereto or any related preliminary prospectus or
preliminary prospectus supplement. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
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indemnified party otherwise than under Section 7(a) or (b). In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided 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 Section
7(a) or (b) for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate national counsel, approved by the
Representatives, representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action 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) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless
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an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by First Union on the one hand and the
Underwriters of the Securities on the other from the offering of the Securities
to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of First Union on the one hand and the Underwriters
of the Securities on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by First Union on the one hand and such Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by First Union
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by First Union on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. First Union and
the Under writers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
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liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to the
Securities and not joint.
8. Termination. This Agreement shall be subject to termination in
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the absolute discretion of the Representatives, by notice given to First Union
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
9. Substituted Underwriters. If, on the Closing Date, any one or
------------------------
more of the Underwriters shall fail or refuse to purchase Securities that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Securities to be purchased on the Closing Date, the other Underwriters shall
-17-
be obligated severally in the proportions that the number of Securities set
forth opposite their respective names in Schedule II bears to the aggregate
number of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Underwriters may agree, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on the Closing Date; provided that in no event
shall the number of Securities that any Underwriter has agreed to purchase
pursuant to Section 2 above be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such number of Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Underwriters and First Union for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or First Union. In such case either the Underwriters or First Union
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Certain Liabilities Upon Termination. If this Agreement shall be
------------------------------------
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the Underwriters
through you for all actual out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Securities
-18-
not so delivered except as provided in Sections 5(e) and 7 hereof.
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of
First Union or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or First Union or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 5(e), 7, 9, 12, 13 and 14 hereof shall survive the
termination or cancellation of this Agreement.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof) and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
14. Counterparts; Notices. This Agreement may be signed in any
---------------------
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to First Union shall
be sufficient in all respects if delivered or sent by registered mail to the
address of First Union set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7 (c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting
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such Questionnaire, which address will be supplied to First Union by the
Representatives upon request.
15. Action by Underwriters. Any action under this Agreement taken by
----------------------
the Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between
First Union and the Underwriters.
Very truly yours,
FIRST UNION CORPORATION
____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above written.
By: [Representatives]
On behalf of the Underwriters
set forth in Schedule II
By: ______________________________
Name:
Title:
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SCHEDULE I
Title of Designated Securities:
[____%] [[Senior] [Subordinated]] [[Debentures] [Notes]]
Due _________ __, ____
Aggregate Principal Amount:
$_____________
Price to Public:
____% of the principal amount of the Designated Securities[, plus accrued
interest, if any, from _________ __, ____]
Purchase Price by Underwriters:
____% of the principal amount of the Designated Securities[, plus accrued
interest, if any, from _________ __, ____]
Specified Funds for Payment of Purchase Price:
Immediately available funds by wire
Indenture:
Indenture, dated as of ________ __, ____, between First Union and
__________, as [Successor] Trustee, as amended
Maturity:
________ __, ____
Interest Rate:
[_____% per annum] [describe floating rate provisions]
Interest Payment Dates:
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________ __ and ________ __ of each year, commencing _______ __, ____
Regular Record Dates:
________ __ and ________ __ of each year, commencing _______ __, ____
Repayment Provisions:
[Describe repayment provisions, if any]
Redemption Provisions:
[Describe redemption provisions, if any]
Sinking Fund Provisions:
[Describe sinking fund provisions, if any]
Conversion Provisions:
[Describe conversion provisions, if any]
Exchange Provisions:
[Describe exchange provisions, if any]
Other Terms:
[Describe additional terms, if any]
Additional Comfort Letter Coverage:
[Describe additional coverage, if any]
Form of Designated Security:
[Global] [Certificated] in denominations set forth in the Prospectus
Supplement
Closing Date:
________ __, ____ at [time]
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Restricted Period Under Section 5(g) of Underwriting Agreement:
[Describe period if other than through Closing Date]
Office for Delivery of Designated Securities:
[insert address]
Office for Payment for Designated Securities:
[insert address]
Name of Representatives:
[insert names]
Address for Notices, etc.:
[insert address]
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SCHEDULE II
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ----------
$
[underwriters names]
---------------
Total $
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the
independent accountants of First Union shall provide a comfort letter to the
effect that:
(i) They are independent certified public accountants with respect to
First Union and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus as amended or supplemented comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of First Union and its subsidiaries, inspection of the
minute books of First Union and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of First Union and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial position
included or incorporated by reference in First Union's most recent
Quarterly Report on Form 10-Q incorporated by reference in the Prospectus
(if any) as amended or supplemented does not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not
III-1
in conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in First Union's
most recent Annual Report on Form 10-K;
(B) any unaudited financial data included in the Prospectus as
amended or supplemented as at any time, or for any period ending, after the
end of the latest interim period covered by a Quarterly Report on Form 10-Q
of First Union or year ended for which First Union has filed an Annual
Report on Form 10-K (whichever is more recent) (and any data for any
comparable prior period included therein) do not agree with the
corresponding amounts in the unaudited consolidated financial statements
from which such data are derived, or any such unaudited financial data were
not deter mined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in First Union's most recent Annual
Report on Form 10-K;
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date
of delivery of such letter there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented) or
long-term debt of First Union or any of its subsidiaries, or any decreases
in
III-2
consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses of First Union or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented to the end of the latest period for which financial statements
are available there were any decreases in consolidated net interest income,
net interest income after provision for loan losses, or the total or per
share amounts of net income of First Union or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or decreases
which the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of First Union and its subsidiaries,
which appear in the Prospectus as amended or supplemented (excluding documents
incorporated by reference), in exhibits to the Registration Statement specified
by the Representatives, or in documents incor porated by reference in the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting
III-3
records of First Union and its subsidiaries and have found them to be in
agreement.
III-4
