WACHOVIA CORPORATION
$250,000,000
Senior Floating Rate Notes due September 28, 2000
UNDERWRITING AGREEMENT
September 18, 1998
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Wachovia Corporation, a North Carolina corporation (the "Company"),
confirms its agreement (the "Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Underwriter"), with respect to
the sale by the Company and the purchase by the Underwriter of $250,000,000
aggregate principal amount of Senior Floating Rate Notes due September 28, 2000
(the "Notes").
The Company understands that the Underwriter proposes to make a
public offering of the Notes as soon as the Underwriter deems advisable after
this Agreement has been executed and delivered. The Notes will be issued
pursuant to an indenture, dated as of August 15, 1996 (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. 333-6319) (the
"First Registration Statement"), Post-Effective Amendment No. 1 to the First
Registration Statement, a Registration Statement on Form S-3 (No. 333-59165)
(the "Second Registration Statement"), which constitutes Post-Effective
Amendment No. 2 to the First Registration Statement, and Post-Effective
Amendment No. 1 to the Second 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
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"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 Underwriter 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.
Section 1. Representations and Warranties. The Company represents
and warrants to the 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
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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 in the first paragraph on page S-2
of the Prospectus Supplement and 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 Underwriter 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 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
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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 1939 Act.
(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.
(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.
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Each certificate signed by any officer of the Company and delivered
to the Underwriter or counsel for the Underwriter shall be deemed to be a
representation and warranty by the Company to the Underwriter 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 Underwriter; Closing.
(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 the Underwriter, and the Underwriter agrees to purchase from
the Company, $250,000,000 aggregate principal amount of the Notes at a price per
Note equal to 99.80472% of the principal amount thereof.
(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 Underwriter 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 Underwriter 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 Underwriter of
certificates for the Notes to be purchased by it. 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
the Underwriter as follows:
(a) The Company will notify the Underwriter 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 Underwriter notice of its intention to
file or prepare (i) any amendment to the Registration Statement (including any
post-effective
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amendment), (ii) any amendment or supplement to the Prospectus (including any
revised prospectus which the Company proposes for use by the Underwriter 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 Underwriter 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 Underwriter or counsel for the Underwriter 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 Underwriter 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 Underwriter may reasonably request and will also deliver to the Underwriter
a conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits).
(d) The Company will furnish to the Underwriter, 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
Underwriter 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 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 Underwriter a
reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriter,
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
Underwriter 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 Underwriter 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
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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 Underwriter, 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.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the printing and filing of the Registration Statement 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 Underwriter, in connection therewith and in connection
with the preparation of any blue sky survey, (v) the printing and delivery to
the Underwriter 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
Underwriter 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 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 Underwriter in accordance
with the provisions of Section 5 or Section 8 hereof, the Company shall
reimburse the Underwriter for all of its reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations
of the Underwriter 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 Underwriter of such timely filing.
(b) At Closing Time the Underwriter shall have received:
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(1) The favorable opinion, dated as of the Closing Time, of Xxxxxxx
X. XxXxxxxxxx, General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriter, 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.
(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. ss. 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
9
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 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 Underwriter 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.
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(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.
(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
11
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 Underwriter; 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 Underwriter, in form and substance
satisfactory to the Underwriter with respect to the legal existence of the
Company, the Indenture, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Underwriter may require.
In giving its opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to
certain matters of North Carolina law upon the opinion of Xxxxxxx X. XxXxxxxxxx,
General Counsel to 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 Underwriter 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, Xxxxx & Young LLP shall have furnished to
the Underwriter a letter or letters (which may refer to letters previously
delivered to the Underwriter), dated as of the Closing Time, in form and
substance satisfactory to the
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Underwriter, 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 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;
13
(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 Underwriter.
(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 the Registration Statement
and Prospectus and which are specified by the Underwriter and agreed to by
Xxxxx & 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, Xxxxx & Young
LLP shall have furnished to the Underwriter a letter or letters, dated the date
of this Agreement, in form and substance satisfactory to the Underwriter, to the
effect set forth in this subsection 4.
(5) At Closing Time, counsel for the Underwriter 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 Underwriter and Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriter.
14
(6) At Closing Time, the Notes are rated AA by Standard & Poor's
Rating Services and Aa3 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.
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 Underwriter 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 the
Underwriter and each of its partners, officers, directors, and employees and
each person, if any, who controls the 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 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 the 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 the 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 the 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 the Underwriter on account of any loss, claim, damage, liability
or action arising out of the sale of Notes to any person by the Underwriter if
(A) the 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
15
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
the 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) The Underwriter 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 the Underwriter,
but only with reference to written information relating to the Underwriter
furnished to the Company by the Underwriter and specifically included in the
Prospectus. This indemnity shall be in addition to any liability which the
Underwriter may otherwise have. The Company acknowledges that the statements set
forth in the first paragraph on page S-2 of the Prospectus Supplement and under
the heading "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by the Underwriter 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 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
16
allegations or circumstances, designated by the Underwriter 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 Underwriter 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
Underwriter may be subject in such proportion so that the Underwriter is
responsible for that portion represented by the percentage that the total
discounts and/or commissions received by the Underwriter 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 the 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 the Underwriter under this
Agreement and (z) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. 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 who shall have signed the
Registration Statement 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 the Underwriter or controlling
person, or by or on behalf of the Company and shall survive delivery of the
Notes to the Underwriter.
17
Section 8. Termination of Agreement.
(a) The Underwriter 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
Underwriter, 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.
(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. 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
Underwriter 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 Xxxxx Xxxxxx, Esq.
Section 10. Parties. This Agreement shall inure to the benefit
of and be binding upon the Underwriter 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
Underwriter 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
18
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter and the Company 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 the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 11. 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 12. 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.
19
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
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
WACHOVIA CORPORATION
/s/ XXXXXX X. XXXXXXX
---------------------
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
/s/ XXXX XXXXXX
---------------------------
Authorized Signatory
