NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES 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 1(f) of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Corporation"), has authorized and proposes to issue and sell from time to time
in the manner contemplated by this Agreement 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 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."
The Corporation has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. __________) 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 relating to the offer and sale of the Corporation's debt securities
constituting a part thereof, as supplemented by a prospectus supplement dated on
or about the date hereof 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) or Rule 434 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 Corporation confirms its agreement with each of you (individually,
an "Agent" and collectively, the "Agents") with respect to the issue and sale
from time to time by the Corporation of the Notes as follows:
SECTION 1. Appointment of Agents.
(a) Appointment. Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of you as Agent in connection with the offer
and sale of the Notes. Notwithstanding the foregoing or any other provision
herein to the contrary, the Corporation reserves the right to sell Notes, at any
time, on its own behalf to any unsolicited purchaser, whether directly to such
purchaser or through an agent for such purchaser. Upon the sale of any Notes to
an unsolicited purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(b) Solicitations as Agent. Subject to the terms and conditions set
forth herein, each Agent agrees, as agent of the Company, to use its reasonable
best efforts when requested by the Company to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus and the
administrative procedures with respect to the sale of Notes as may be agreed
upon from time to time between the Agents and the Corporation (the
"Procedures"). Initial Administrative Procedures dated __________, 199_ 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. Notwithstanding
any provision herein to the contrary, 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 of the Notes until such time as the
Corporation has advised the Agents that such solicitation may be resumed.
Each 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
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
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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.
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.
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 such Agent and set forth in a pricing supplement to the
Prospectus (a "Pricing Supplement") to be prepared following each acceptance by
the Corporation of an offer for the purchase of Notes.
Such 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 gross 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.
(c) Commissions. 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 and disclosed in a Pricing Supplement,
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.
(d) 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 expressly agree from time to time that such Agent shall purchase
Notes as principal. In the event that an Agent and the Corporation shall
expressly so agree, Notes shall be purchased by such Agent as principal. Unless
otherwise agreed between the Corporation and the Agent and disclosed in a
Pricing Supplement, each Note sold to an Agent as principal shall be purchased
by such Agent at a price equal to 100% of the principal amount thereof less a
discount equivalent to the applicable commissions set forth in Exhibit C hereto
and may be resold by such Agent at prevailing market prices at the time or times
of resale as determined by such Agent. Such purchases as principal shall
otherwise 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
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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 set forth herein,
including Section 10(b) hereof.
(e) Sub-Agents. An Agent may engage the services of any other broker or
dealer in connection with the resale of any Notes purchased as principal but no
Agent may appoint sub-agents. In connection with sales by an Agent of Notes
purchased by such Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount received in connection with such purchases
from the Corporation to such brokers and dealers.
(f) Appointment of Additional Agents. Notwithstanding any provision
herein to the contrary, the Corporation reserves the right to appoint additional
agents for the offer and sale of Notes, which agency may be on an on-going basis
or on a one-time basis. Any such additional agent 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, at such Agent's
request, copies of the documents delivered to other Agents under Sections 4(a),
4(b) and 4(c) and, if such appointment is on an on-going basis, Sections 6(b),
6(c) and 6(d) hereof.
(g) 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 or provided in the Procedures.
(h) 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.
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
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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 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 and regulations 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.
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(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
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. 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
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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 as to which the Agents or their counsel 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 (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 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
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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
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;
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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, 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 4. 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:
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(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 (A) NationsBank, National Association, (B)
NationsBank, National Association (South), and (C) NationsBank
of Texas, 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) 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 by the Corporation, has been duly
qualified under the 1939 Act, as applicable, and constitutes a
legal, valid and binding
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instrument of the Corporation 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 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.
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(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 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 on behalf of the Corporation 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.
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(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. 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
13
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 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;
14
(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 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 4 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
15
covenant regarding provision of an earnings statement set forth in Section 3(h)
hereof, the provisions concerning payment of expenses under Section 8 hereof,
the indemnity and contribution agreements set forth in Section 7 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery set forth in Section 9 hereof and the provisions regarding parties set
forth under Section 13 hereof shall remain in effect.
SECTION 5. 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 6. 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
16
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 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 4(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
4(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 4(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
17
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 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 4(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 4(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 7. 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
18
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 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, or arises out of or is based upon statements in or
omissions from 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, 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 written 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.
19
(c) Promptly after receipt by an indemnified party under this Section 7
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 7, 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 7. 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 7 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 7 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
20
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
misrepresentation. For purposes of this Section 7, 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 8. 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;
21
(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, reproduction 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 9. 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 10. 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
22
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 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 10, 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 Section 1(c) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as
23
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 3 and 6 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 3(h) hereof, the provisions of Section 8
hereof, the indemnity and contribution agreements set forth in Section 7 hereof,
and the provisions of Sections 9, 12 and 13 hereof shall remain in effect.
SECTION 11. 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.
214 North Church 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 11.
SECTION 12. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the
24
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 13. 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 7 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 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
[Signatures By Agents To Follow]
25
[Signature Page for Agents]
26
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
[Names and Addresses of Additional Agents]
27
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 __, by NationsBank Corporation
Dear __________:
The Master United States Distribution Agreement dated _____________, 1996 (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 ___.
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 the 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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