NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
January 10, 1996
To the Agents listed on Exhibit A hereto and to each additional person that
shall become an Agent as provided in Section 12 of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Corporation"), confirms its agreement with each of you (individually, as
"Agent" and collectively, the "Agents") with respect to the issue and sale by
the Corporation of its Senior Medium-Term Notes, Series E (the "Senior Notes")
and its Subordinated Medium-Term Notes, Series E (the "Subordinated Notes," and
together with the Senior Notes, the "Notes"). The Senior Notes are to be issued
pursuant to an Indenture dated as of January 1, 1995 between the Corporation and
First Trust of New York, N.A. (the "Senior Trustee") as successor trustee to
BankAmerica National Trust Company (the "Senior Indenture"). The Subordinated
Notes are to be issued pursuant to an Indenture dated as of January 1, 1995
between the Corporation and The Bank of New York (the "Subordinated Trustee"),
as trustee (the "Subordinated Indenture). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the "Trustees," and
the Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures."
This Agreement provides both for the sale of Notes (i) by the
Corporation directly to purchasers using Agents to solicit purchasers in their
capacity as agents of the Corporation and (ii) by the Corporation to one or more
of the Agents as principal for resale to purchasers.
The Corporation has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 33-63097) for the
registration of debt securities (both senior and subordinated), preferred
shares, depositary shares and common shares under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC, and the Trustees have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by the Corporation
for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be provided to the Agents by the Corporation for use in
connection with the offering of the Notes which is not required to be filed by
the Corporation pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein
including the reservation by the Corporation of the right to sell Notes directly
on its own behalf as set forth in Section 3(b) hereof, the Corporation hereby
appoints the Agents named herein or appointed hereunder as agents in connection
with the sale of the Notes. The Agents are authorized to engage the services of
any other broker or dealer in connection with the offer or sale of the Notes
purchased by an Agent as principal for resale to others, but are not authorized
to appoint sub-agents in connection with the sale of Notes through an Agent as
agent.
(b) Sale of Notes. The Corporation shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Corporation from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise monitoring the
availability of Notes for sale under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Corporation as principal, but an Agent and the
Corporation may agree from time to time that such Agent shall purchase Notes as
principal. Any such purchases of Notes by an Agent as principal shall be made in
accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
Corporation, the Agent, acting solely as agent for the Corporation and not as
principal, will solicit purchases of the Notes. All Notes sold through an Agent
as agent will be sold at 100% of their principal amount unless otherwise agreed
to by the Corporation and such Agent. Such Agent will communicate to the
Corporation, orally, each offer to purchase Notes solicited by such Agent on an
agency basis, other than those offers rejected by the Agent. The Agent shall
have the right, in its discretion
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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 Corporation
may accept or reject any proposed purchase of the Notes, in whole or in part,
and any such rejection shall not be deemed a breach of the Corporation's
agreement herein. The Agent shall make reasonable efforts to assist the
Corporation in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Corporation. The
Agent shall not have any liability to the Corporation in the event any such
agency purchase is not consummated for any reason other than the negligence of
the Agent. If the Corporation shall default on its obligation to deliver Notes
to a purchaser whose offer it has accepted, the Corporation shall (i) hold the
Agent for such purchase harmless against any loss, claim or damage arising from
or as a result of such default by the Corporation and (ii) notwithstanding such
default, pay to such Agent any commission to which it would be entitled in
connection with such sale.
The Corporation reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Corporation, the Agents will forthwith suspend solicitation of
purchases from the Corporation until such time as the Corporation has advised
the Agents that such solicitation may be resumed.
For those offers to purchase Notes accepted by the Corporation, the
Agent shall be paid a commission. Unless otherwise agreed between the
Corporation and the Agent, such commission shall be an amount equal to the
applicable percentage of the principal amount of each Note sold by the
Corporation as a result of a solicitation made by such Agent as set forth in
Exhibit C hereto.
(e) Reliance. The Corporation and the Agents agree that any Notes the
placement of which an Agent arranges shall be placed by such Agent in reliance
on the representations, warranties, covenants and agreements of the Corporation
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Corporation of an offer
for the purchase of Notes (whether through an Agent as agent or to an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any
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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 Corporation meets the requirements for use of Form S-3
under the 1933 Act and has filed with the SEC the Registration
Statement, which has become effective. Such Registration Statement
meets the requirements of Rule 415(a)(1) under the 1933 Act and
complies in all other material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as supplemented
with respect to the Notes is first filed pursuant to Rule 424 under the
1933 Act, when any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by
reference in the Registration Statement) and as of the applicable
Representation Date, (a) the Registration Statement, as amended or
supplemented as of any such time, the Prospectus, when filed, and the
applicable Indenture will comply in all material respects with the
applicable requirements of the 1933 Act, the 1939 Act and the 1934 Act
and the respective rules thereunder, (b) the Registration Statement, as
amended as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (c) the Prospectus, as amended or supplemented as of
any such time, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Corporation makes no representations or warranties as
to (x) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification of the Trustee (Form
T-1) under the 1939 Act of either of the Trustees or (y) the
information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Corporation by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration Statement and the
Prospectus.
(iii) The Corporation has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba; provided,
however, that in the event that such Section 517.075 shall be repealed,
or amended such that issuers shall no longer be required to disclose in
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prospectuses information regarding business activities in Cuba or that
a broker, dealer or agent shall no longer be required to obtain a
statement from issuers regarding such compliance, then this
representation and agreement shall be of no further force and effect.
(b) Additional Certifications. Any certificate signed by any director
or officer of the Corporation and delivered to an Agent or to counsel for such
Agent in connection with an offering of Notes or the sale of Notes to an Agent
as principal shall be deemed a representation and warranty by the Corporation to
such Agent as to the matters covered thereby on the date of such certificate and
at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Etc.
(a) Purchases as Principal. In the event that an Agent and the
Corporation shall expressly so agree, Notes shall be purchased by such Agent as
principal. Each purchase of Notes, unless otherwise agreed, shall be at a
discount equivalent to the applicable commissions set forth in Exhibit C hereto.
Such purchases shall be made in accordance with terms agreed upon by the Agent
and the Corporation (which shall be agreed upon orally, with written
confirmation prepared by the Agent and delivered to the Corporation within two
business days of such oral agreement). In the absence of a separate written
agreement, the Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations, warranties and covenants
of the Corporation herein contained and shall be subject to the terms and
conditions in the manner set forth herein, including Section 11(b) hereof. An
Agent may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased as principal and may reallow any portion of
the discount received in connection with such purchases from the Corporation to
such brokers and dealers.
(b) Corporation Sales to Unsolicited Purchasers. Notwithstanding any
provision herein to the contrary, the Corporation reserves the right to (i) sell
Notes, at any time, directly on its own behalf to any unsolicited purchaser,
whether directly to such purchaser or through the agent of such purchaser, and
(ii) accept offers to purchase Notes through additional agents on substantially
the same terms and conditions as would apply to the Agents hereunder. Upon the
sale of any Notes to an unsolicited purchaser, no Agent named herein shall be
entitled to any commission pursuant to this Agreement.
(c) Administrative Procedures. The purchase price, interest rate,
maturity date and other terms of the Notes (as applicable) specified in Exhibit
B hereto shall be agreed upon by the Corporation and the applicable Agent and
set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Corporation of an offer for the purchase of
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Notes. Administrative procedures with respect to the sale of Notes shall be
agreed upon from time to time by the Agents and the Corporation (the
"Procedures"). Initial Administrative Procedures dated January 10, 1996 shall
remain in effect until changed by the Agents and the Corporation. The Agents and
the Corporation agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus (other than with respect to a document filed with the SEC pursuant to
the 1934 Act which will be incorporated by reference in the Registration
Statement and the Prospectus), (iv) of any request by the SEC for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information relating thereto (other than such a request with
respect to a document filed with the SEC pursuant to the 1934 Act which will be
incorporated by reference in the Registration Statement and the Prospectus), and
(v) of the issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. The Corporation will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Corporation will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes or any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates or maturity dates of Notes or similar changes or an amendment or
supplement effected by the filing of a document with the SEC pursuant to the
1934 Act) and, upon request, will furnish the Agents with copies of any such
registration statement or amendment or supplement proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such registration statement or amendment
or supplement in a form to which the Agents or their counsel shall reasonably
object.
(c) Copies of the Registration Statement and the Prospectus
and 1934 Act Filings. The Corporation will deliver to the Agents
as many signed and conformed copies of the Registration Statement
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(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
Corporation will furnish to the Agents as many copies of the Prospectus (as
amended or supplemented) as the Agents shall reasonably request so long as the
Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes under the Act. The Corporation
will furnish to the Agents copies of any Annual Report on Form 10-K, Quarterly
Report on Form 10-Q or Current Report on Form 8-K filed by the Corporation with
the Commission pursuant to the 1934 Act as soon as practicable after the filing
thereof.
(d) Preparation of Pricing Supplements. The Corporation will prepare,
with respect to any Notes to be sold through or to an Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Corporation, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agent and to cease sales of any Notes any Agent
may then own as principal, and the Corporation will promptly prepare and file
with the SEC such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Corporation with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
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respect to any fiscal year, the Corporation 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 Corporation
for the preceding fiscal year, the Corporation shall furnish such information to
the Agents and thereafter shall cause the Registration Statement and the
Prospectus to be amended to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements, as may be required
by the 1933 Act or the 1934 Act or otherwise.
(h) Earnings Statements. The Corporation will make generally available
to its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the first day of the
Corporation's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualification. The Corporation will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Corporation shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. The Corporation will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Corporation will
promptly advise the Agents of the receipt by the Corporation of any notification
with respect to the suspension of the qualification of the Notes for sale in any
such state or jurisdiction or the initiating or threatening of any proceeding
for such purpose.
(j) 1934 Act Filings. The Corporation, during the period
when the Prospectus is required to be delivered under the 1933 Act,
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will file promptly all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Suspension of Certain Obligations. The Corporation shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agent pursuant to a
request from the Corporation and (ii) the Agents shall not then hold any Notes
as principal purchased from the Corporation, to the time the Corporation shall
determine that solicitation of purchases of the Notes should be resumed or shall
subsequently agree for the Agents to purchase Notes as principal.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase the Notes as
agent of the Corporation, the obligations of any purchasers of the Notes sold
through any Agent as agent and any obligation of an Agent to purchase Notes as
principal or otherwise will be subject to the accuracy of the representations
and warranties on the part of the Corporation herein and to the accuracy of the
statements of the Corporation's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Corporation of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel to the
Corporation, 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 Corporation, to the
effect of paragraphs (ii) and (iii) below:
(i) The Corporation is a duly organized and validly
existing corporation in good standing under the laws of the
State of North Carolina, has the corporate power and authority
to own its properties and conduct its business as described in
the Prospectus and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; each of NationsBank, National Association (South),
NationsBank of Texas, National Association, and NationsBank,
National Association (or the successors to such entities)
(collectively, the "Subsidiaries"), is a national banking
association formed under the laws of the United States and
authorized thereunder to transact business.
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(ii) Except for those jurisdictions specifically
enumerated in such opinion, to the best of such counsel's
knowledge, neither the Corporation nor any of the Subsidiaries
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction.
(iii) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued
and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital
stock of the Subsidiaries (except directors' qualifying
shares) are owned, directly or indirectly, by the Corporation
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances.
(iv) This Agreement has been duly authorized, executed and
delivered by the Corporation and constitutes a legal, valid
and binding agreement of the Corporation, enforceable against
the Corporation in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject to 12 U.S.C. ss. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of
public policy underlying all such laws).
(v) Each of the Indentures has been duly authorized,
executed and delivered, has been duly qualified under the 1939
Act, as applicable, and constitutes a legal, valid and binding
instrument enforceable against the Corporation in accordance
with its terms, and the Notes have been duly authorized and,
when the terms of the Notes have been established and when the
Notes have been completed, executed, authenticated and
delivered in accordance with the provisions of the applicable
Indenture, the applicable Board Resolutions and this Agreement
against payment of the consideration therefor, will constitute
legal, valid and binding obligations of the Corporation
entitled to the benefits of such Indenture, subject (with
respect to each of the Indentures and the Notes) as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
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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. ss. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of principles of
public policy underlying all such laws.
(vi) The forms of Notes attached to the Secretary's
Certificate delivered to the Agents conform in all material
respects to the description thereof contained in the
Prospectus, as supplemented or amended.
(vii) The Registration Statement has become effective under
the 1933 Act; to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act and
the 1934 Act and the respective rules thereunder.
(viii) To the best knowledge of such counsel, except as
disclosed in the Registration Statement or the Prospectus,
there is no pending or threatened action, suit or proceeding
before or by any court or governmental agency, authority or
body or any arbitrator involving the Corporation or any of the
Subsidiaries, of a character required to be disclosed in the
Registration Statement, which is not adequately disclosed in
the Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(ix) To the best knowledge of such counsel, neither the
issuance and sale of the Notes, the consummation of any other
of the transactions contemplated by this Agreement nor the
fulfillment of the terms thereof will conflict with, result in
a breach of, or constitute a default under the Restated
Articles of Incorporation or the Amended and Restated Bylaws
of the Corporation or, to the best of such counsel's
knowledge, the terms of any material indenture or other
agreement or instrument known to such counsel and to which the
Corporation or any of the Subsidiaries is a party or bound, or
any order or regulation known to such counsel to be applicable
to the Corporation or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body
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or arbitrator having jurisdiction over the Corporation or
any of the Subsidiaries.
(x) To the best knowledge of such counsel, no
authorization, order, approval or consent of, or filing with,
any court or governmental authority or agency is necessary or
required in connection with the sale of the Notes hereunder,
except such as have been obtained under the 1933 Act or the
1933 Act Regulations and such as may be required under foreign
or state securities or insurance laws in connection with the
distribution of the Notes.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, to the extent
deemed proper and specified in such opinion, upon counsel for the
Agents or upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the Agents; and
(B) as to matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Corporation and the Subsidiaries and
public officials.
(2) Opinion of Counsel to the Agents. The opinion of 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 Corporation
or upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Corporation; and
(B) as to matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Corporation and the Subsidiaries and
public officials.
(3) In giving their opinions required by subsections (a)(1)
and (a)(2) of this Section, but without opining in connection
therewith, 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
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statements therein, in light of the circumstances under which they were
made, not misleading.
(b) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chairman and Chief Executive Officer or a Senior
Vice President and the Chief Financial or Chief Accounting Officer of the
Corporation, dated as of the date hereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus
and this Agreement and that to the best of their knowledge (i) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Corporation and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus, as supplemented
or amended, (ii) the other representations and warranties of the Corporation
contained in Section 2 hereof are true and correct in all material respects with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) the Corporation has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received
a letter from Price Waterhouse LLP ("Price Waterhouse") dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect
to the Corporation and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of the
Corporation and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
shareholders, the board of directors, executive committee
13
and audit committee of the Corporation and the boards of
directors and executive committees of its subsidiaries as set
forth in the minute books through a specified date not more
than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
NO. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the
Corporation and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus and reading the unaudited interim financial data,
if any, for the period from the date of the latest balance
sheet included or incorporated by reference in the
Registration Statement and Prospectus to the date of the
latest available interim financial data; and
(c) Making inquiries of certain officials of the
Corporation who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration
Statement and Prospectus, for them to be in conformity with
generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Corporation
and the subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more
than five
14
business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any decreases in
shareholders' equity of the Corporation and the subsidiaries
on a consolidated basis, except in all instances for changes
or decreases which the Registration Statement and Prospectus
discloses have occurred or may occur, or Price Waterhouse
shall state any specific changes or decreases.
(iv) The letter shall also state that Price
Waterhouse has carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agents and agreed to
by Price Waterhouse, and has found such amounts, percentages
and financial information to be in agreement with the relevant
accounting, financial and other records of the Corporation and
its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date
with respect to any purchase of Notes by an Agent as principal, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Corporation in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to such Agent and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Agents by notice to the Corporation at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 9 hereof, the indemnity and contribution agreements set
forth in Section 8 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 10 hereof and
the provisions regarding parties set forth under Section 15 hereof shall remain
in effect.
15
SECTION 6. Delivery of and Payment for Notes Sold through the
Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Corporation to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has theretofore paid the
Corporation for such Note, the Corporation will promptly return such funds to
the Agent. If such failure occurred for any reason other than default by the
Agent in the performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Corporation's account. Unless
otherwise agreed between the Corporation and the Agent, all Notes will be issued
in book-entry only form and will be represented by one or more fully registered
global securities.
SECTION 7. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
it of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a sale of Notes to such Agent as principal, shall be deemed to be an
affirmation that the representations and warranties of the Corporation contained
in this Agreement and in any certificate theretofore delivered to such Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or his agent,
or to such Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K that is incorporated by reference into the Prospectus, or (ii) if required
by the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates or maturity dates of Notes or similar changes, an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes or, except as hereinbefore described, an amendment or
supplement resulting from the filing of any document incorporated by reference
therein), the Corporation shall furnish or cause to be furnished to the Agents
forthwith a certificate of the Chairman and Chief Executive Officer, any Senior
16
Vice President, the Chief Financial Officer, the Chief Accounting Officer or
Treasurer of the Corporation dated the date of filing with the SEC of such
supplement or document or the date of effectiveness of such amendment, as the
case may be, in form satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section 5(b) hereof which
was last furnished to the Agents are true and correct at the time of such
filing, amendment or supplement, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) there is
filed with the SEC any Annual Report on Form 10-K, (ii) if required by the
Agents, there is filed any Quarterly Report on Form 10-Q, or (iii) if required
by the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates or maturity dates of the Notes or similar changes
or solely for the inclusion of additional financial information, an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes or, except as hereinbefore described, an amendment or supplement resulting
from the filing of any document incorporated by reference therein), the
Corporation shall furnish or cause to be furnished forthwith to the Agents and
to counsel to the Agents the written opinions of Smith Helms Mulliss & Moore,
L.L.P., counsel to the Corporation, and Paul J. Polking, General Counsel to the
Corporation, or other counsel satisfactory to the Agents, dated the date of
filing with the SEC of such supplement or document or the date of effectiveness
of such amendment, as the case may be, in form and substance satisfactory to the
Agents, of the same tenor as the opinions referred to in Section 5(a)(1) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions;
or, in lieu of such opinions, counsel last furnishing such opinions to the
Agents shall furnish the Agents with a letter substantially to the effect that
the Agents may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed with the SEC any
Quarterly Report on Form 10-Q or (iii) if required by the Agents,
17
the Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than an amendment or supplement
resulting from the filing of a Current Report on Form 8-K that is incorporated
by reference therein), the Corporation shall cause Price Waterhouse forthwith to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document filed with the SEC, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the
letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Corporation;
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, Price Waterhouse may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement. If any
other information included therein is of an accounting, financial or statistical
nature, the Agents may request procedures be performed with respect to such
other information. If Price Waterhouse is willing to perform and report on the
requested procedures, such letter should cover such other information. Any
letter required to be provided by Price Waterhouse hereunder shall be provided
within five business days of the filing of the Annual Report on Form 10-K or,
with respect to any letter required by the Agents pursuant to subparagraph (ii)
or (iii) hereof, the request by the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold harmless each Agent
and each person who controls any Agent within the meaning of either the 1933 Act
or the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus, or
any amendment or supplement thereof, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
18
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Corporation will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Corporation by or on behalf of any Agent specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to the
Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if such
person did not receive a copy of the Prospectus as amended or supplemented in
connection with the sale of such Notes excluding documents incorporated therein
by reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the 1933 Act and the
untrue statement or omission of a material fact contained in the Prospectus was
corrected in the Prospectus as amended or supplemented. This indemnity agreement
will be in addition to any liability which the Corporation may otherwise have.
(b) Each Agent severally agrees to indemnify and hold harmless the
Corporation, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Corporation within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Corporation to each Agent, but only with reference
to written information relating to such Agent furnished to the Corporation by or
on behalf of such Agent specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Agent may otherwise have. The Corporation
acknowledges that the statements set forth in the last two paragraphs on the
cover page and under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information furnished in writing by
or on behalf of the several Agents for inclusion in the documents referred to in
the foregoing indemnity, and you, as the Agents, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
19
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agent in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Corporation on the grounds of policy or otherwise, the
Corporation and the Agents shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Corporation and
one or more of the Agents may be subject in such proportion so that each Agent
is responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent bears to the total
sales price from the sale of Notes sold to or through the Agents to the date of
such liability, and the Corporation is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
20
misrepresentation. For purposes of this Section 8, each person who controls any
Agent within the meaning of the 1933 Act shall have the same rights to
contribution as such Agent, and each person who controls the Corporation within
the meaning of either the 1933 Act or the 1934 Act, each officer of the
Corporation who shall have signed the Registration Statement and each director
of the Corporation shall have the same rights to contribution as the
Corporation, subject in each case to the provisions of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
SECTION 9. Payment of Expenses.
The Corporation will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of book-
entry notes;
(d) The fees and disbursements of the Corporation's
accountants and counsel, of the Trustees and their counsel, and of
any registrar, transfer agent, paying agent or calculation agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities or insurance
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the delivery by
the Agent of the
21
Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to
the Agents of copies of the Indentures and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with the
listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers,
Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(n) The fees and expenses of any depository and any nominees
thereof in connection with the Notes.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Corporation submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of any
Agent, or by or on behalf of the Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by an Agent to purchase Notes as principal) may be
terminated for any reason, with respect to one or more, or all, of the Agents,
at any time by either the Corporation or one or more of the Agents upon the
giving of 30 days' written notice of such termination to the other party hereto.
Any termination by the Corporation of this Agreement with respect to one or
more, but less than all, of the Agents shall be effective with respect to such
designated Agents only, and the Agreement will remain in force and effect with
respect to any other Agents who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal.
An Agent may terminate any agreement hereunder by such Agent to
purchase Notes as principal, immediately upon notice to the
22
Corporation at any time prior to the Settlement Date relating thereto, (i) if
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Corporation and its subsidiaries
considered as one enterprise, or (ii) if there shall have occurred, since the
date of such agreement, any outbreak or material escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent, impracticable to market the Notes
or enforce contracts for the sale of the Notes, or (iii) if, since the date of
such agreement, trading in securities generally on the New York Stock Exchange
shall have been suspended or limited, or (iv) if, since the date of such
agreement, a banking moratorium shall have been declared by either Federal or
New York authorities.
If, after the date of an agreement hereunder to purchase Notes as
principal and prior to the Settlement Date with respect to such agreement, the
rating assigned by Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc. or Moody's Investors Service, Inc. as the case may be, to any debt
securities of the Corporation shall have been lowered or if either of such
rating agencies shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Corporation, then the Corporation and the Agent mutually shall determine
whether the terms of such agreement to purchase Notes shall need to be
renegotiated and, if so, shall so negotiate in good faith the revised terms of
such agreement to purchase Notes. In the event that the Corporation and the
Agent reasonably fail to agree on any such revised terms, then either the
Corporation or the Agent may terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this Section 11, or
following the Settlement Date in connection with a sale to or through an Agent
appointed on a one-time basis, neither party will have any liability to the
other party hereto, except that (i) the Agents shall be entitled to any
commission earned in accordance with the third paragraph of Section 1(d) hereof,
(ii) if at the time of termination (a) any Agent shall own any Notes purchased
by it as principal with the intention of reselling them or (b) an offer to
purchase any of the Notes has been accepted by the Corporation but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(h) hereof, the provisions of Section 9
hereof, the indemnity and contribution agreements set forth in Section 8 hereof,
and the provisions of Sections 10, 14 and 15 hereof shall remain in effect.
23
SECTION 12. Additional Agents.
The Corporation may from time to time designate additional agents to
participate in the sale of Notes as principal or agent hereunder. Such agency
participation may be either on an on-going basis or on a one time basis for a
single transaction. Such agents shall become a party to this Agreement and shall
thereafter be subject to the provisions hereof and entitled to the benefits
hereunder upon the execution of a counterpart hereof or other form of
acknowledgement of its appointment hereunder, including the form of letter
attached hereto as Exhibit D, and delivery to the Corporation of addresses for
notice hereunder and under the Procedures. After the time an Agent is appointed,
the Corporation shall deliver to the Agent copies of these documents earlier
delivered to other Agents under Sections 5(a), 5(b) and 5(c) and, if such
appointment is on an on-going basis, Sections 7(b), 7(c) and 7(d) hereof.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram. Notices to the Corporation shall be delivered
to it at the address specified below and notices to any Agent shall be delivered
to it at the address set forth on Exhibit A.
If to the Corporation:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Corp. Treas. Div. NC1-007-23-01
Attention: 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 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
24
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Corporation and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Corporation a counterpart hereof,
whereupon this instrument along with all
25
counterparts will become a binding agreement between the Agents and the
Corporation in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:
Name:
Title: Senior Vice President and
Treasurer
Accepted:
NationsBanc Capital Markets, Inc.
By:
Name:
Title: Director
26
LEHMAN BROTHERS, INC.
By: _________________________
Name: _______________________
Title: ______________________
MERRILL LYNCH & CO.
By: _________________________
Name: Richard N. Doyle, Jr.
Title: Director
MORGAN STANLEY & CO., INC.
By: _________________________
Name: Richard C. Schwartz
Title: Principal
SALOMON BROTHERS INC
By: _________________________
Name:
Title:
27
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
7th Floor, NC1-007-01-01
Charlotte, North Carolina 28255-0065
Telecopy: (704) 386-9926
With a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285 - 1200
Attention: Medium-Term Note Department
Telecopy: (212) 528-1718
Telephone: (212) 526-2040
Merrill Lynch & Co., as representative of the Agents
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10048
Attention: Managing Director of Debt Syndicate
Salomon Brothers Inc
32nd Floor
Seven World Trade Center
New York, New York 10048
Attention: MTN Group
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EXHIBIT B
The following terms, if applicable, shall be agreed to by an Agent and
the Corporation in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
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EXHIBIT C
As compensation for the services of an Agent hereunder, the Corporation
shall pay it, on a discount basis, a commission for the sale of each Note by
such Agent which, unless otherwise agreed between the Corporation and Agent,
shall be equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES.................................................................. PRINCIPAL AMOUNT
From 9 months to less than 1 year................................................ .125%
From 1 year to less than 18 months............................................... .150
From 18 months to less than 2 years.............................................. .200
From 2 years to less than 3 years................................................ .250
From 3 years to less than 4 years................................................ .350
From 4 years to less than 5 years................................................ .450
From 5 years to less than 6 years................................................ .500
From 6 years to less than 7 years................................................ .550
From 7 years to less than 10 years............................................... .600
From 10 years to less than 15 years.............................................. .625
From 15 years to less than 20 years.............................................. .700
From 20 years to 30 years........................................................ .750
The commission for Notes with a maturity more than 30 years or sold to one or
more Agents as principal also is subject to negotiation between the Corporation
and the Agent at the time of sale.
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EXHIBIT D
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term Senior/Subordinated
Notes, Series E, by NationsBank Corporation
Dear __________:
The Master United States Distribution Agreement dated December __, 1995 (the
"Agreement"), among NationsBank Corporation ("NationsBank") and the Agents named
therein, provides for the issue and sale by NationsBank of its Medium Term
Notes, Series E.
Subject to and in accordance with the terms of the Agreement and accompanying
Administrative Procedures, NationsBank hereby appoints you as Agent (as such
term is defined in the Agreement) in connection with the purchase of Notes as
described in the accompanying Pricing Supplement No. ___, dated ___________,
199__, (the "Notes") but only for this one reverse inquiry transaction. Your
appointment is made subject to the terms and conditions applicable to Agents
under the Agreement and terminates upon payment for the Notes or other
termination of this transaction. Accompanying this letter is a copy of the
Agreement, the provisions of which are incorporated herein by reference. Copies
of the officer's certificate, opinions of counsel, and auditors' letter
described in the Agreement are not enclosed but are available upon your request.
This letter agreement, like the Agreement, is governed by and construed in
accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our agreement, please
sign and return this letter to us on or before settlement date. This action will
confirm your appointment and your acceptance and agreement to act as Agent in
connection with the issue and sale of the above described Notes under the terms
and conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
NATIONSBANK CORPORATION [Name of Agent]
By:____________________ By:_____________________
Name:__________________ Name:___________________
Title:_________________ Title:__________________
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