* NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER GLOBAL DISTRIBUTION AGREEMENT
__________, 199_
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 13
of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), confirms its agreement with each of you
(individually, as "Agent" and collectively, the "Agents") with
respect to the issue and sale by the Company of its Senior
Medium-Term Notes, Series __(the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated
Notes," and together with the Senior Notes, the "Notes"). The
Senior Notes are to be issued pursuant to an Indenture dated as
of January 1, 1995 between the Company and BankAmerica National
Trust Company (the "Senior Trustee"), as trustee (the "Senior
Indenture"), and resolutions of the Board of Directors of the
Corporation (or a committee thereof). The Subordinated Notes are
to be issued pursuant to an Indenture dated as of January 1, 1995
between the Company and The Bank of New York (the "Subordinated
Trustee"), as trustee (the "Subordinated Indenture), and
resolutions of the Board of Directors of the Corporation (or a
committee thereof). The Senior Trustee and the Subordinated
Trustee are collectively referred to herein as the "Trustees,"
and the Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "Indentures."
This Agreement provides both for the sale of Notes directly
to purchasers, in which case the Agent or Agents may act as an
agent of the Company in soliciting Note purchases, and (as may
from time to time be agreed to by the Company and the Agent or
Agents) for the sale of Notes by the Company to one or more of
the Agents as principal for resale to purchasers.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a Registration Statement on Form S-3 (No.
33-57533) for the registration of debt securities (both senior
and subordinated), preferred shares and common shares under the
Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the SEC under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been
declared effective by the SEC, and the Trustees have been
qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as
an exhibit) and the prospectus constituting a part thereof, and
any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
The Notes may be offered and sold pursuant to this Agreement
in the United States or outside of the United States, subject to
compliance with the laws of the various jurisdictions in which
such offers or sales may occur. The Notes may be denominated in
U.S. dollars or in another currency or currency unit (such as the
European Currency Unit), and the principal of (and premium, if
any, on) or interest on the Notes may be payable in U.S. dollars
or such foreign currency or currency unit. Notes issued in the
United States will be issued in registered form and may be
represented by either a single global security in registered form
without coupons delivered to The Depository Trust Company ("DTC")
and recorded in the book-entry system maintained by DTC or by a
certificate delivered to the holder thereof or such holder's
designee. Notes issued outside of the United States will be
issued in bearer or registered form. If so specified in the
Prospectus, the Notes issued in bearer form will be represented
initially by a temporary global Note delivered to a common
depositary outside the United States. On or after the date
determined as provided in any such temporary global Note and as
described in the Prospectus, beneficial interests in a temporary
global Note will be exchangeable for beneficial interests in a
permanent global Note or for definitive Notes in bearer form or
in registered form. The Notes may be listed on such exchanges,
if any, as are identified in the Prospectus.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein including the reservation by the Company of the
right to sell Notes directly on its own behalf as set forth in
Section 3(c) hereof, the Company hereby appoints the Agents
hereunder in connection with the sale of the Notes and agrees
that Notes will be sold exclusively to or through the Agents.
The Agents are authorized to engage the services of any other
broker or dealer in connection with the offer or sale of the
Notes purchased by an Agent as principal for resale to others,
but are not authorized to appoint sub-agents in connection with
the sale of Notes through an Agent as agent.
(b) Sale of Notes. The Company shall not sell or approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to
the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise monitoring
the availability of Notes for sale under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but
an Agent and the Company may agree from time to time that such
Agent shall purchase Notes as principal. Any such purchases of
Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and
the Company, the Agent, acting solely as agent for the Company
and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Company, orally, each offer to
purchase Notes solicited by such Agent on an agency basis, other
than those offers rejected by the Agent. The Agent shall have
the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes by persons solicited by the Agent, as
a whole or in part, and any such rejection shall not be deemed a
breach of the Agent's agreement contained herein. The Company
may accept or reject any proposed purchase of the Notes, in whole
or in part, and any such rejection shall not be deemed a breach
of the Company's agreement herein. The Agent shall make
reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company. The Agent
shall not have any liability to the Company in the event any such
agency purchase is not consummated for any reason other than the
negligence of the Agent. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Company shall (i) hold the Agent for such purchase
harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) notwithstanding
such default, pay to such Agent any commission to which it would
be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any
Notes the placement of which an Agent arranges shall be placed by
such Agent, and any Notes purchased by such Agent shall be
purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on
the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of
the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether through an Agent
as agent or to an Agent as principal), as of the date of each
delivery of Notes (whether through an Agent as agent or to an
Agent as principal) (the date of each such delivery to an Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the
Registration Statement) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) The Company meets the requirements for use of Form
S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has become effective. Such
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as
supplemented with respect to the Notes is first filed
pursuant to Rule 424 under the 1933 Act, when any amendment
to the Registration Statement becomes effective (including
the filing of any document incorporated by reference in the
Registration Statement) and as of the applicable
Representation Date, (a) the Registration Statement, as
amended or supplemented as of any such time, the Prospectus,
when filed, and the applicable Indenture will comply in all
material respects with the applicable requirements of the
1933 Act, the 1939 Act and the 1934 Act and the respective
rules thereunder, (b) the Registration Statement, as amended
as of any such time, will not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, and (c) the
Prospectus, as amended or supplemented as of any such time,
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company
makes no representations or warranties as to (x) that part
of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the 1939 Act of either of the Trustees or
(y) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration
Statement and the Prospectus.
(iii) The Company has complied and will comply with all
the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended,
and all regulations promulgated thereunder relating to
issuers doing business in Cuba; provided, however, that in
the event that such Section 517.075 shall be repealed, or
amended such that issuers shall no longer be required to
disclose in prospectuses information regarding business
activities in Cuba or that a broker, dealer or agent shall
no longer be required to obtain a statement from issuers
regarding such compliance, then this representation and
agreement shall be of no further force and effect.
(b) Additional Certifications. Any certificate signed by
any director or officer of the Company and delivered to an Agent
or to counsel for such Agent in connection with an offering of
Notes or the sale of Notes to an Agent as principal shall be
deemed a representation and warranty by the Company to such Agent
as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. In the event that an Agent
and the Company shall expressly so agree, Notes shall be
purchased by such Agent as principal. Each purchase of Notes,
unless otherwise agreed, shall be at a discount equivalent to the
applicable commissions set forth in Exhibit C hereto. Such
purchases shall be made in accordance with terms agreed upon by
the Agent and the Company (which shall be agreed upon orally,
with written confirmation prepared by the Agent and delivered to
the Company within two business days of such oral agreement).
The Agent's commitment to purchase Notes as principal shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth. An Agent may
engage the services of any other broker or dealer in connection
with the resale of the Notes purchased as principal and may
reallow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers.
(b) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to
the terms and conditions herein set forth, when agreed by the
Company and an Agent, such Agent, as an agent of the Company,
will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the
Prospectus. All Notes sold through an Agent as agent will be
sold at 100% of their principal amount unless otherwise agreed to
by the Company and such Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the
Agents, as agent, commencing at any time for any period of time
or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of purchases from
the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission equal to
the applicable percentage of the principal amount of each Note
sold by the Company as a result of a solicitation made by such
Agent as set forth in Exhibit C hereto.
(c) Company Sales to Unsolicited Purchasers.
Notwithstanding any provision herein to the contrary, the Company
reserves the right to (i) sell Notes, at any time, directly on
its own behalf to any unsolicited purchaser, whether directly to
such purchaser or through the agent of such purchaser, and (ii)
accept offers to purchase Notes through additional agents on
substantially the same terms and conditions as would apply to the
Agents hereunder. Upon the sale of any Notes to an unsolicited
purchaser, no Agent shall be entitled to any commission pursuant
to this Agreement.
(d) Administrative Procedures. The purchase price,
interest rate, maturity date and other terms of the Notes (as
applicable) specified in Exhibit B hereto shall be agreed upon by
the Company and the applicable Agent and set forth in a pricing
supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes.
Administrative procedures with respect to the sale of Notes shall
be agreed upon from time to time by the Agents and the Company
(the "Procedures"). Initial Administrative Procedures dated
__________, 199_ shall remain in effect until changed by the
Agents and the Company. The Agents and the Company agree to
perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the
Agents immediately (i) of the effectiveness of any amendment to
the Registration Statement, (ii) of the transmittal to the SEC
for filing of any supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
from the SEC with respect to the Registration Statement or the
Prospectus (other than with respect to a document filed with the
SEC pursuant to the 1934 Act which will be incorporated by
reference in the Registration Statement and the Prospectus), (iv)
of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information relating thereto (other than such a
request with respect to a document filed with the SEC pursuant to
the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), (v) of the issuance
by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose, and (vi) of the issuance by any non-United States
regulatory authority of any request for information relating to
the Notes or suspension of qualification of (A) the offer or sale
of the Notes under the laws of such non-United States
jurisdiction or (B) the listing of the Notes on a stock exchange
or exchanges, if any, contemplated by the Prospectus. 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) Notice of Certain Proposed Filings. The Company will
give the Agents notice of its intention to file or prepare any
additional registration statement with respect to the
registration of additional Notes or any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
Notes or similar changes or an amendment or supplement effected
by the filing of a document with the SEC pursuant to the 1934
Act) and will furnish the Agents with copies of any such
registration statement or amendment or supplement proposed to be
filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any
such registration statement or amendment or supplement in a form
to which the Agents or their counsel shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus
and 1934 Act Filings. The Company will deliver to the Agents as
many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes under
the Act. The Company will furnish to the Agents copies of any
Annual Report on Form 10-K, Quarterly Report on Form 10-Q or
Current Report on Form 8-K filed by the Company with the
Commission pursuant to the 1934 Act as soon as practicable after
the filing thereof.
(d) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold through or to an
Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents
and will file such Pricing Supplement with the SEC pursuant to
Rule 424(b) under the 1933 Act not later than the close of
business on the second business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agent and to cease
sales of any Notes any Agent may then own as principal, and the
Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, and with such other non-
United States regulators, as may be necessary to correct such
untrue statement or omission or to make the Registration
Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and thereafter
shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding thereof,
as may be required by the 1933 Act or the 1934 Act or otherwise.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish such information to the
Agents and thereafter shall cause the Registration Statement and
the Prospectus to be amended to include or incorporate by
reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such
financial statements, as may be required by the 1933 Act or the
1934 Act or otherwise.
(h) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of
Rule 158 under the 1933 Act) covering each twelve-month period
beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents may
designate and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act,
will file promptly all documents required to be filed with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) Stock Exchange Listings. In the event that the
Prospectus provides that any Notes shall be listed on a stock
exchange, the Company agrees to furnish from time to time any and
all documents, instruments, information and undertakings and
publish all advertisements or other material that may be
necessary to maintain such listing and will maintain such listing
until notice of the series of such Notes is outstanding or until
such time as payment in respect of principal, premium, if any,
and interest in respect of all such series of Notes has been duly
provided for, whichever is earlier; provided, that if the Company
can no longer reasonably maintain such listing, it will use its
best efforts to obtain and maintain the quotation for, or listing
of, such Notes on such other stock exchange or exchanges as the
Agents shall reasonably request.
(l) Laws of Non-United States Jurisdictions. The terms of
any Notes sold outside the United States and the manner in which
such Notes are sold will comply with the various laws of such
non-United States jurisdiction.
(m) Suspension of Certain Obligations. The Company shall
not be required to comply with the provisions of subsections (e),
(f) or (g) of this Section during any period from the time (i)
the Agents shall have suspended solicitation of purchases of the
Notes in their capacity as agent pursuant to a request from the
Company and (ii) the Agents shall not then hold any Notes as
principal purchased from the Company, to the time the Company
shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently agree for the Agents to
purchase Notes as principal.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase
the Notes as agent of the Company, the obligations of any
purchasers of the Notes sold through any Agent as agent and any
obligation of an Agent to purchase Notes as principal or
otherwise will be subject to the accuracy of the representations
and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Smith
Helms Mulliss & Moore, L.L.P., counsel to the Company, to
the effect of paragraphs (i) and (iv) through (x) below, and
the opinion of Paul J. Polking, Executive Vice President and
General Counsel to the Company, to the effect of paragraphs
(ii) and (iii) below:
(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 and conduct its
business as described in the Prospectus and is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of
NationsBank of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, National Association (or the successors to
such entities) (collectively, the "Subsidiaries"), is a
national banking association formed under the laws of
the United States and authorized thereunder to transact
business.
(ii) To the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is
required to be qualified or licensed to do business as
a foreign corporation in any jurisdiction.
(iii) All the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. section 55, as amended) nonassessable,
and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may
be limited by federal and state securities laws, and
further subject to 12 U.S.C. section 1818(b)(6)(D) and
similar bank regulatory powers and to the application
of principles of public policy underlying all such
laws).
(v) Each of the Indentures has been duly
authorized, executed and delivered, has been duly
qualified under the 1939 Act, as applicable, and
constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, and the Notes have been duly authorized and,
when the terms of the Notes have been established and
when the Notes have been completed, executed,
authenticated and delivered in accordance with the
provisions of the applicable Indenture, the applicable
Board Resolutions and this Agreement against payment of
the consideration therefor, will constitute legal,
valid and binding obligations of the Company entitled
to the benefits of such Indenture, subject (with
respect to each of the Indentures and the Notes) as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and further subject
to 12 U.S.C. section 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy underlying all such laws.
(vi) The forms of Notes attached to the
Secretary's Certificate delivered to the Agents conform
in all material respects to the description thereof
contained in the Prospectus, as supplemented or
amended.
(vii) The Registration Statement has become
effective under the 1933 Act; to the best knowledge of
such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other
than the financial statements and other financial and
statistical information contained therein or
incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the 1933 Act and the 1934 Act and the respective
rules thereunder.
(viii) To the best knowledge of such counsel, except
as disclosed in the Registration Statement or the
Prospectus, there is no pending or threatened action,
suit or proceeding before or by any court or
governmental agency, authority or body or any
arbitrator involving the Company or any of the
Subsidiaries, of a character required to be disclosed
in the Registration Statement, which is not adequately
disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to
be described in the Registration Statement or the
Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(ix) To the best knowledge of such counsel,
neither the issuance and sale of the Notes, the
consummation of any other of the transactions
contemplated by this Agreement nor the fulfillment of
the terms thereof will conflict with, result in a
breach of, or constitute a default under the Restated
Articles of Incorporation or the Amended and Restated
Bylaws of the Company or, to the best of such counsel's
knowledge, the terms of any material indenture or other
agreement or instrument known to such counsel and to
which the Company or any of the Subsidiaries is a party
or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of the
Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the
Subsidiaries.
(x) To the best knowledge of such counsel, no
authorization, order, approval or consent of, or filing
with, any court or governmental authority or agency is
necessary or required in connection with the sale of
the Notes hereunder, except such as have been obtained
under the 1933 Act or the 1933 Act Regulations and such
as may be required under foreign or state securities or
insurance laws in connection with the distribution of
the Notes.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or the
United States, to the extent deemed proper and specified in
such opinion, upon counsel for the Agents or upon the
opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agents;
and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and
the Subsidiaries and public officials.
(2) Opinion of Counsel to the Agents. The opinion of
Stroock & Stroock & Lavan, counsel to the Agents, covering
the matters referred to in subparagraph (1) under the
subheadings (iv) through (vii), inclusive, above.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Company or upon the opinion of
other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Company; and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and the
Subsidiaries and public officials.
(3) In giving their opinions required by subsections
(a)(1) and (a)(2) of this Section, but without opining in
connection therewith, Smith Helms Mulliss & Moore, L.L.P.
and Stroock & Stroock & Lavan shall each additionally state
that although they have not independently verified, are not
passing upon and assume no responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, such counsel has no reason to
believe that the Registration Statement or any amendment
thereof at the time it became effective, or that the
Prospectus, as amended or supplemented, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Officer's Certificate. At the date hereof, the Agents
shall have received a certificate of the Chairman and Chief
Executive Officer or a Senior Vice President and the chief
financial or chief accounting officer of the Company, dated as of
the date hereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there
has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising from transactions in
the ordinary course of business, except as set forth or
contemplated in the Prospectus, as supplemented or amended, (ii)
the other representations and warranties of the Company contained
in Section 2 hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as
of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of
such certificate, and (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or
threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall
have received a letter from Price Waterhouse LLP ("Price
Waterhouse") dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the 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 published rules and regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iv) Price Waterhouse has carried out certain
other specified procedures, not constituting an audit,
with respect to certain amounts, percentages and
financial information which are included or
incorporated by reference in the Registration Statement
and Prospectus and which are specified by the Agents
and agreed to by Price Waterhouse, and has found such
amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries
identified in such letter.
(d) Stock Exchange Listing. In the event that the
Prospectus provides for the listing of the Notes on a stock
exchange, then prior to the commencement of offers and sales of
such Notes such stock exchange or exchanges shall have granted
listing to such Notes, subject only to the delivery to such stock
exchange or exchanges of the related Prospectus or other similar
post-approval requirements.
(e) Other Documents. On the date hereof and on each
Settlement Date with respect to any purchase of Notes by an Agent
as principal, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and
completeness of any of the representations and 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 Notes as herein contemplated shall be satisfactory in
form and substance to such Agent and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Agents by
notice to the Company at any time and any such termination shall
be without liability of any party to any other party, except that
the covenant regarding provision of an earnings statement set
forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 9 hereof, the indemnity and
contribution agreements set forth in Section 8 hereof, the
provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and
the provisions regarding parties set forth under Section 16
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the
Agents.
Delivery of Notes sold through an Agent as agent shall be
made by the Company to such Agent for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the Agent shall promptly notify the Company and
deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will
promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will
reimburse the Agent on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the
Company's account. Unless otherwise agreed between the Company
and the Agent, all Notes will be issued in book-entry only form
and will be represented by one or more fully registered global
securities.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each
delivery of Notes to an Agent pursuant to a sale of Notes to such
Agent as principal, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to such
Agent, of the Note or Notes relating to such acceptance or sale,
as the case may be, as though made at and as of each such time
(and it is understood that such representations and warranties
shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that
(i) there is filed with the SEC any Quarterly Report on Form 10-Q
or Annual Report on Form 10-K that is incorporated by reference
into the Prospectus, or (ii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
Notes or similar changes, an amendment or supplement which
relates exclusively to an offering of securities other than the
Notes or, except as hereinbefore described, an amendment or
supplement resulting from the filing of any document incorporated
by reference therein), the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate of the Chairman
and Chief Executive Officer, any Senior Vice President, the Chief
Financial Officer, the Chief Accounting Officer or Treasurer of
the Company dated the date of filing with the SEC of such
supplement or document or the date of effectiveness of such
amendment, as the case may be, in form satisfactory to the Agents
to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which was last furnished to
the Agents are true and correct at the time of such filing,
amendment or supplement, as the case may be, as though made at
and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed any Quarterly
Report on Form 10-Q, or (iii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
the Notes or similar changes or solely for the inclusion of
additional financial information, an amendment or supplement
which relates exclusively to an offering of securities other than
the Notes or, except as hereinbefore described, an amendment or
supplement resulting from the filing of any document incorporated
by reference therein), the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents
the written opinions of Smith Helms Mulliss & Moore, L.L.P.,
Counsel to the Company, and Paul J. Polking, General Counsel to
the Company, or other counsel satisfactory to the Agents, dated
the date of filing with the SEC of such supplement or document or
the date of effectiveness of such amendment, as the case may be,
in form and substance satisfactory to the Agents, of the same
tenor as the opinions referred to in Section 5(a)(1) hereof, but
modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinions; or, in lieu of such opinions, counsel
last furnishing such opinions to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents
may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed with the SEC any
Quarterly Report on Form 10-Q or (iii) if required by the Agents,
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information (other
than an amendment or supplement resulting from the filing of a
Current Report on Form 8-K that is incorporated by reference
therein), the Company shall cause Price Waterhouse forthwith to
furnish the Agents a letter, dated the date of effectiveness of
such amendment, supplement or document filed with the SEC, as the
case may be, in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i)
and (ii) of Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 5(c) with such changes as may be
necessary to reflect changes in the financial statements and
other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, Price
Waterhouse may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement.
If any other information included therein is of an accounting,
financial or statistical nature, the Agents may request
procedures be performed with respect to such other information.
If Price Waterhouse is willing to perform and report on the
requested procedures, such letter should cover such other
information. Any letter required to be provided by Price
Waterhouse hereunder shall be provided within five business days
of the filing of the Annual Report on Form 10-K or, with respect
to any letter required by the Agents pursuant to subparagraph
(ii) or (iii) hereof, the request by the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person who controls any Agent within the meaning
of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act,
the 1934 Act or other Federal or state statutory law or
regulation, at common law, under the laws of any non-United
States jurisdiction, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or
arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Agent
specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Prospectus shall not
inure to the benefit of any Agent (or any person controlling such
Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus
as amended or supplemented in connection with the sale of such
Notes excluding documents incorporated therein by reference at or
prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the 1933
Act and the untrue statement or omission of a material fact
contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement and each person who controls
the Company within the meaning of either the 1933 Act or the 1934
Act, to the same extent as the foregoing indemnity from the
Company to each Agent, but only with reference to written
information relating to such Agent furnished to the Company by or
on behalf of such Agent specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
any Agent may otherwise have. The Company acknowledges that the
statements set forth in the last two paragraphs on the cover page
and under the heading "Plan of Distribution" in the Prospectus,
as supplemented or amended, constitute the only information
furnished in writing by or on behalf of the several Agents for
inclusion in the documents referred to in the foregoing
indemnity, and you, as the Agents, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Agent in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Agents shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Agents may be subject in such proportion so that each Agent is
responsible for that portion represented by the percentage that
the total commissions and underwriting discounts received by such
Agent bears to the total sales price from the sale of Notes sold
to or through the Agents to the date of such liability, and the
Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls any Agent within the meaning of the 1933
Act shall have the same rights to contribution as such Agent, and
each person who controls the Company within the meaning of either
the 1933 Act or the 1934 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 the provisions of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustees and their counsel, and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities
or insurance laws in accordance with the provisions of Section
4(i) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Agents in connection therewith
and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Agent of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, printing, reproducing and delivery to
the Agents of copies of the Indentures and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses, if any, incurred in connection
with the listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers,
Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(m) The cost of providing any CUSIP or other identification
numbers for the Notes;
(n) The fees and expenses of any depository and any
nominees thereof in connection with the Notes; and
(o) The cost of complying with the laws of any non-United
States jurisdictions in which the Notes may be offered and sold.
SECTION 10. Covenants of the Agents.
(a) Each Agent severally covenants with the Company that
(i) it will not offer, sell or deliver any Notes in bearer form
(whether temporary or definitive) during the restricted period
with respect to such Notes in the United States or its possessions,
or to any United States person other than an exempt purchaser; (ii)
it has in effect, in connection with the offer and sale of the Notes
in bearer form during the restricted period, procedures reasonably
designed to ensure that its employees or agents who are directly
involved in selling the Notes are aware that the Notes cannot be
offered or sold during the restricted period to a person who is
within the United States or its possessions or is a United States
person (other than an exempt purchaser); (iii) it will not permit
any affiliate (within the meaning of Section 1.163-
5(c)(2)(i)(D)(4)(iii) of the treasury regulations (the "Treasury
Regulations") under the Internal Revenue Code of 1986, as amended
(the "Code")) to acquire any Bearer Notes for the purpose of
offering or selling it during the restricted period unless such
affiliate provides it (for the benefit of the Company) with the
covenants contained in this paragraph; (iv) it will not deliver
any Bearer Notes in connection with the sale thereof during the
restricted period, in definitive form within the United States or
its possessions; (v) it will not enter into any written contract
with another distributor (within the meaning of Section 1.163-
5(c)(2)(i)(D)(4) of the Treasury Regulations to offer or sell the
Bearer Notes during the restricted period unless such distributor
provides it (for the benefit of the Company) with the covenants
contained in this paragraph; and (vi) if it is a United States
person, it is acquiring the Notes for purposes of resale in
connection with their original issuance and if it retains the
Bearer Notes for its own account, it will only do so in
accordance with the requirements of Section 1.163-
5(c)(2)(i)(D)(6) of the Treasury Regulations.
For purposes of the selling restrictions described in this
section, an offer or sale will be considered to be made to a
person who is within the United States or its possessions if the
offeror or seller of the Bearer Notes has an address within the
United States or its possessions for the offeree or buyer of the
Bearer Notes with respect to the offer or sale.
As used herein, "United States person" means a citizen or
resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source; "United States" means the United States of America
(including the States and the District of Columbia) and
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands; "Bearer Note" means any Note established
pursuant to either of the Indentures which is payable to bearer
(including without limitation any Note in temporary or permanent
global bearer form) and title to which passes by delivery only,
"restricted period" means, with respect to a Note, the period
beginning on the earlier of the closing date or the first date on
which the Note is offered to persons other than distributors and
ending on the expiration of the 40-day period beginning on the
closing date, except that, notwithstanding the foregoing, any offer
or sale of the Notes by the Company or a distributor shall be
deemed to be made during the restricted period if the distributor
holds the Note as part of an unsold allotment or subscription; and
"exempt purchaser" means (A) an exempt distributor (as defined in
Section 1.163-5(c)(2)(i)(D)(5) of the Treasury Regulations) that
covenants that it is buying the Bearer Notes for the purpose of
resale in connection with the original issuance thereof, and that
if it retains the Notes for its own account, it will do so only in
accordance with the requirements of Section 1.163-
5(c)(2)(i)(D)(6) of the Treasury Regulations; (B) an
international organization described in Section 7701(a)(18) of
the Code; (C) a foreign central bank (as defined in Section 895
of the Code and the Treasury Regulations thereunder); (D) a
foreign branch of a United States financial institution as
described in Section 1.163-5(c)(2)(i)(D)(6)(i) of the Treasury
Regulations; and (E) a United States person who acquires the
Bearer Notes through the foreign branch of a United States
financial institution and who holds the Bearer Notes through such
financial institution. Notwithstanding the foregoing, however,
(i) a person described in (A) of this paragraph will not be
considered an exempt purchaser with respect to offers to a non-
United States office of such person; (ii) a person described in
(B) or (C) of this paragraph will not be considered an
international organization or a foreign central bank, as the case
may be, with respect to offers that are not made directly and
specifically to such person; (iii) a person described in (E) of
this paragraph will be considered an exempt purchaser only with
respect to sales of the Bearer Notes; and (iv) in the case of
persons described in (D) or (E) of this paragraph, the financial
institution holding the Bearer Note provides a certificate to the
distributor selling the Bearer Note stating that it agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Code and the Treasury Regulations thereunder.
(b) Each Agent severally further covenants with the Company
(i) that it has not offered or sold, and will not offer or sell,
directly or indirectly the Notes in any non-United States country
except in compliance with the various laws of such country
related to Prospectus delivery, investor suitability, publication
of information, or otherwise, and (ii) more specifically, that
(A) it has not offered or sold, and will not offer or sell,
directly or indirectly, in the United Kingdom, by means of any
document any of the Notes other than to persons whose ordinary
business it is to buy or sell shares or debentures, whether as
principal or agent (other than in circumstances which do not
constitute an offer to the pubic within the meaning of the
Companies Act 1985 of the United Kingdom), (B) it has complied
and will comply with all applicable provisions of the Financial
Services Act 1986 of the United Kingdom with respect to anything
done by it in relation to the Notes in, from or otherwise
involving the United Kingdom and (C) it has not issued or passed
on and will not issue or pass on to any person in the United
Kingdom any publication or document received by it in connection
with the issue of the Notes other than to persons who are of a
kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1988 or are
persons to whom the publication or document may otherwise
lawfully be issued or passed on.
(c) Without prejudice to the provisions of this Section 10
above and subject to the obligations of the Company set forth in
Section 4 of this Agreement, the Company shall have no
responsibility for, and each Agent will obtain, any consent,
approval or permission required by such Agent for the
subscription, offer, sale or delivery by such Agent of Notes
under the laws and regulations in force in any jurisdiction to
which such Agent is subject or in or from which such Agent makes
any subscription, offer, sale or delivery.
(d) Each Agent agrees to indemnify and hold harmless the
Company and each person controlling the Company from and against
any and all losses, claims, damages and liabilities arising from
any breach by it of the foregoing provisions of this Section 10.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or by
or on behalf of the Company, and shall survive each delivery of
and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any agreement hereunder by an Agent to purchase Notes
as principal) may be terminated for any reason, with respect to
one or more, or all, of the Agents, at any time by either the
Company or one or more of the Agents upon the giving of 30 days'
written notice of such termination to the other party hereto.
Any termination by the Company of this Agreement with respect to
one or more, but less than all, of the Agents shall be effective
with respect to such designated Agents only, and the Agreement
will remain in force and effect with respect to any other Agents
who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent may terminate any agreement hereunder by
such Agent to purchase Notes as principal, immediately upon
notice to the Company at any time prior to the Settlement Date
relating thereto, (i) if there has been, since the date of such
agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or (ii) if
there shall have occurred, since the date of such agreement, any
outbreak or material escalation of hostilities or other national
or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes,
or (iii) if, since the date of such agreement, trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited, or (iv) if, since the date of such
agreement, a banking moratorium shall have been declared by
either Federal or New York authorities.
If, after the date of an agreement hereunder to purchase
Notes as principal and prior to the Settlement Date with respect
to such agreement, the rating assigned by Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc. or Moody's
Investors Service, Inc. as the case may be, to any debt
securities of the Company shall have been lowered or if either of
such rating agencies shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
then the Company and the Agent mutually shall determine whether
the terms of such agreement to purchase Notes shall need to be
renegotiated and, if so, shall so negotiate in good faith the
revised terms of such agreement to purchase Notes. In the event
that the Company and the Agent reasonably fail to agree on any
such revised terms, then either the Company or the Agent may
terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this
Section 11, or following the Settlement Date in connection with a
sale to or through an Agent appointed on a one-time basis,
neither party will have any liability to the other party hereto,
except that (i) the Agents shall be entitled to any commission
earned in accordance with the third paragraph of Section 3(b)
hereof, (ii) if at the time of termination (a) any Agent shall
own any Notes purchased by it as principal with the intention of
reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth
in Section 4(h) hereof, the provisions of Section 9 hereof, the
indemnity and contribution agreements set forth in Section 8
hereof, and the provisions of Sections 10, 14 and 15 hereof shall
remain in effect.
SECTION 13. Additional Agents.
The Company may from time to time designate additional
agents to participate in the sale of Notes as principal or agent
hereunder. Such agency participation may be either on an on-
going basis or on a one time basis for a single transaction.
Such agents shall become a party to this Agreement and shall
thereafter be subject to the provisions hereof and entitled to
the benefits hereunder upon the execution of a counterpart hereof
or other form of acknowledgement of its appointment hereunder and
delivery to the Company of addresses for notice hereunder and
under the Procedures. After the time an Agent is appointed, the
Company shall deliver to the Agent copies of these documents
earlier delivered to other Agents under Sections 5(a), 5(b),
5(c), 7(b), 7(c) and 7(d) hereof.
SECTION 14. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram.
Notices to the Company shall be delivered to it at the address
specified below and notices to any Agent shall be delivered to it
at the address set forth on Exhibit A.
If to the Company:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Attention: John E. Mack, Treasurer
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
NationsBank Corporation
NationsBank Corporate Center
Legal Department, NC1007-20-01
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
227 N. Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 14.
SECTION 15. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the
parties shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and
to be performed in such State. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 16. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such
purchase.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Company in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:
Name:
Title: Senior Vice President and
Treasurer
Accepted:
NationsBanc Capital Markets, Inc.
By:
Name:
Title: Director
[Signatures By Agents To Follow]
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBanc Corporate Center
7th Floor, NC1007-01-01
Charlotte, North Carolina 28255-0065
With a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
[Additional Agents To Be Specified]
EXHIBIT B
The following terms, if applicable, shall be agreed to by an
Agent and the Company in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
EXHIBIT C
As compensation for the services of an Agent hereunder, the
Company shall pay it, on a discount basis, a commission for the
sale of each Note by such Agent equal to the principal amount of
such Note multiplied by the appropriate percentage set forth
below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year . . . . . . .125%
From 1 year to less than 18 months . . . . . .150
From 18 months to less than 2 years . . . . . .200
From 2 years to less than 3 years . . . . . . .250
From 3 years to less than 4 years . . . . . . .350
From 4 years to less than 5 years . . . . . . .450
From 5 years to less than 6 years . . . . . . .500
From 6 years to less than 7 years . . . . . . .550
From 7 years to less than 10 years . . . . . .600
From 10 years to less than 15 years . . . . . .625
From 15 years to less than 20 years . . . . . .700
From 20 years to 30 years . . . . . . . . . . .750
The commission for notes with a maturity of more than 30 years is subject to
negotiations between the Company and the Agent at the time of sale.