EXHIBIT 1
FORM OF UNDERWRITING AGREEMENT
$___,000,000
Capital Securities
WACHOVIA CAPITAL TRUST [ ]
(a Delaware Trust)
UNDERWRITING AGREEMENT
January __, 1997
Ladies and Gentlemen:
Wachovia Capital Trust [ ] (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. Section 3801 et
seq.), and Wachovia Corporation, a North Carolina corporation (the "Company"
and, together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with [ ] and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
[ ] are acting as representatives (in such capacity, the "Representatives"),
with respect to the sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of _____% Capital
Securities (liquidation amount of $25 per capital security) of the Trust (the
"Initial Capital Securities") set forth in said Schedule A. The Company also
grants to the Underwriters, severally and not jointly, the option described in
Section 2(c) (the "Option") to purchase up to
_______ additional ____% Capital Securities (liquidation amount of $25 per
capital security) of the Trust (the "Option Capital Securities" and together
with the Initial Capital Securities the "Capital Securities") solely to cover
over-allotments. The Capital Securities will be guaranteed on a subordinated
basis by the Company, to the extent set forth in the Prospectus (as defined
herein), with respect to distributions and payments upon liquidation, redemption
and otherwise (the "Capital Securities Guarantee") pursuant to the Capital
Securities Guarantee Agreement, dated as of January __, 1997, and as may be
amended, if necessary, in connection with an exercise of the Option (the
"Capital Securities Guarantee Agreement"), between the Company and The First
National Bank of Chicago, as trustee (the "Guarantee Trustee"). The Capital
Securities and the related Capital Securities Guarantees are referred to herein
as the "Securities."
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-19365) and a
related preliminary prospectus for the registration under the Securities Act of
1933, as amended (the "1933 Act") of (i) the Capital Securities, (ii) the
Capital Securities Guarantee, and (iii) the Junior Subordinated Debentures (as
defined below) to be issued and sold to the Trust by the Company, have filed
such amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
Such registration statement (as amended) and the prospectus constituting a part
thereof (including, in each case, all documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act and the information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations")), as from time to time amended or supplemented pursuant
to the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), or otherwise, are hereinafter referred to as the "Registration Statement"
and the "Prospectus," respectively, except that, if any revised prospectus shall
be provided to the Underwriters by the Offerors for use in connection with the
offering of the Capital Securities which differs from the Prospectus on file at
the Commission at the time the Registration Statement became effective (whether
or not such revised prospectus is required to be filed by the Offerors 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
Underwriters for such use. All references in this Agreement to financial
statements and schedules and other information that is "contained," "included"
or "stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and
2
include all such financial statements and schedules and other information that
are or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act that
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Capital Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered and the Declaration (as
defined herein), the Indenture (as defined herein) and the Capital Securities
Guarantee have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). The entire proceeds to the Trust from the sale of the Capital
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities"), as guaranteed
on a subordinated basis by the Company, to the extent set forth in the
Prospectus, with respect to distributions and payments upon liquidation and
redemption thereof (the "Common Securities Guarantee" and together with the
Capital Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement, dated as of January __, 1997, as amended, if
necessary, in connection with an exercise of the Option (the "Common Securities
Guarantee Agreement" and, together with the Capital Securities Guarantee
Agreement, the "Guarantee Agreements"), between the Company and the Guarantee
Trustee, as Trustee, and will be used by the Trust to purchase the $______
aggregate principal amount of ___% Junior Subordinated Deferrable Interest
Debentures due _______________ (the "Junior Subordinated Debentures") issued by
the Company (and such additional aggregate principal amount of Junior
Subordinated Debentures as may be necessary if the Option is exercised), under
the Indenture (as defined herein). The Capital Securities and the Common
Securities will be issued pursuant to the amended and restated declaration of
trust of the Trust, dated as of January __, 1997 (the "Declaration") (as may be
further amended, if necessary, subject to the exercise of the Option), among the
Company, as Sponsor, Robert S. McCoy, John J. Milani and Richard B. Roberts, as
trustees (the "Administrative Trustees"), and The First National Bank of
Chicago, as property trustee (the "Property Trustee" and, together with the
Administrative Trustees, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Debentures will be issued pursuant to an indenture, dated as of
January __, 1997 (the "Base Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Debenture Trustee"), and a supplement
to the Base Indenture, dated as of January __, 1997 (the "Supplemental
Indenture," and together with the Base
3
Indenture and any other amendments or supplements thereto, the "Indenture"),
between the Company and the Debenture Trustee.
Section 1. Representations and Warranties. (a) The Offerors jointly and
severally represent and warrant to each Underwriter as of the date hereof and as
of the Closing Time (as hereinafter defined) and as of the Option Closing Time
(as hereinafter defined), if any, as follows:
(i) At the time the Registration Statement became effective
and as of the date hereof, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, dated the date
hereof (unless the term "Prospectus" refers to a prospectus that has
been provided to the Underwriters by the Trust for use in connection
with the offering of the Securities and that differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case, at the time it is first
provided to the Underwriters for such use) and at Closing Time or
Option Closing Time referred to in Section 2 hereof, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, the Offerors make no representations or warranties as to (A)
that part of the Registration Statement which constitutes the
Statements of Eligibility and Qualification (Forms T-1) under the 1939
Act of the Debenture Trustee, the Property Trustee or the Guarantee
Trustee or (B) the information contained in the statements set forth in
the first paragraph on page S-2 of the Prospectus Supplement and under
the headings "Underwriting" in the Prospectus Supplement and "Plan of
Distribution" in the Prospectus.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or Prospectus, at the time
they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
(iii) To the best knowledge of the Offerors, Ernst & Young, LLP,
the accountants who certified the financial statements and supporting
schedules included in or
4
incorporated by reference into the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The Trust has been duly created and is validly existing and
in good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Common
Securities Subscription Agreement, dated as of January __, 1997,
between the Company and the Trust (the "Common Securities Subscription
Agreement"), the Debenture Subscription Agreement, dated as of January
__, 1997, between the Company and the Trust (the "Debenture
Subscription Agreement"), the Capital Securities, the Common Securities
and the Declaration; the Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus; the Trust
is and will be classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation;
and the Trust is and will be treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
(v) The Common Securities have been duly authorized by the Trust
pursuant to the Declaration and, when issued and delivered by the Trust
to the Company against payment therefor as described in the
Registration Statement and Prospectus, will be validly issued and,
subject to the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform to all statements relating thereto contained in the Prospectus;
the issuance of the Common Securities is not subject to preemptive or
other similar rights.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(vii) Each of the Common Securities Subscription Agreement and the
Debenture Subscription Agreement have been duly authorized by the
Company and the Trust and will have been duly executed and delivered by
the Company and the Trustees, and will constitute a valid and binding
obligation of the Company and the Trust, enforceable against the
Company and the Trust in accordance with its terms, except to the
extent that enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors, rights generally
or by general principles of equity (regardless of whether enforcement
is
5
considered in a proceeding at law or in equity) and the
availability of equitable remedies (collectively, the
"Enforceability Exceptions").
(viii) The Declaration has been duly authorized by the Company, as
Sponsor, and will have been duly executed and delivered by the Company
and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee, the Declaration is
and will be a valid and binding obligation of the Company, the Trust
and the Administrative Trustees, enforceable against the Company and
the Administrative Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Enforceability
Exceptions and will conform to all statements relating thereto in the
Prospectus; and the Declaration has been duly qualified under the 1939
Act.
(ix) Each of the Guarantee Agreements has been duly authorized
by the Company and, when validly executed and delivered by the Company,
and, in the case of the Capital Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Capital
Securities Guarantee by the Guarantee Trustee, will constitute a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions, and each of
the Guarantees and the Guarantee Agreements will conform to all
statements relating thereto contained in the Prospectus; and the
Capital Securities Guarantee Agreement has been duly qualified under
the 1939 Act.
(x) The Capital Securities have been duly authorized by the
Trust pursuant to the Declaration and, when issued and delivered
pursuant to this Agreement against payment of the consideration
therefor set forth in Schedule B hereto, will be validly issued and,
subject to the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the Trust, will be entitled to the
benefits of the Declaration and will conform to all statements relating
thereto contained in the Prospectus; the issuance of the Capital
Securities is not subject to preemptive or other similar rights; and,
subject to the terms of the Declaration, holders of Capital Securities
will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit.
(xi) Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration; the Declaration has been duly
executed and delivered by
6
the Administrative Trustees and is a valid and binding obligation of
each Administrative Trustee, enforceable against such Administrative
Trustee in accordance with its terms except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions.
(xii) None of the Offerors is, and upon the issuance and sale of
the Capital Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus none will be,
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act).
(xiii) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Capital Securities, the Junior Subordinated Debentures or the
Guarantees hereunder, except such as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws and the
qualification of the Declaration, the Capital Securities Guarantee
Agreement and the Indenture under the 1939 Act.
(b) The Company represents and warrants to each Underwriter as
of the date hereof and as of the Closing Time (as hereinafter defined) and as of
the Option Closing Time (as hereinafter defined), if any, as follows:
(i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings or business
affairs of the Trust or the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business.
(ii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina with corporate power to own, lease and operate its properties
and to conduct its business as described in the Prospectus, to enter
into and perform its obligations under this Agreement, the Common
Securities Subscription Agreement, the Debenture Subscription
Agreement, the Declaration, as Sponsor, the Indenture and each of the
Guarantees and to purchase, own, and hold the Common Securities issued
by the Trust; the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each
7
jurisdiction in which the character or location of its properties or
the nature or the conduct of its business requires such qualification,
except for any failures to be so qualified or in good standing which,
taken as a whole, are not material to the Company and its
subsidiaries, considered as one enterprise.
(iii) Each of Wachovia Bank of Georgia, N.A. ("Wachovia
Bank of Georgia"), Wachovia Bank of North Carolina, N.A.
("Wachovia Bank of North Carolina"), and Wachovia Bank of
South Carolina, N.A. ("Wachovia Bank of South Carolina")
(or the successors to such entities) is a duly organized and validly
existing national banking associations under the laws of the United
States, continues to hold a valid certificate to do business as such
and has full power and authority to conduct its business as such
(Wachovia Bank of Georgia, Wachovia Bank of North Carolina and Wachovia
Bank of South Carolina are referred collectively as the "Significant
Subsidiaries"); each Significant Subsidiary has the authority under its
jurisdiction of organization to own, lease and operate its properties
and to conduct its business and is duly authorized to transact business
and is in good standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that
the failure to so qualify or to be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(iv) The Indenture has been duly authorized by the Company and,
when validly executed and delivered by the Company, will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions;
the Indenture will conform to all statements relating thereto contained
in the Prospectus; and the Indenture has been duly qualified under the
1939 Act.
(v) The Junior Subordinated Debentures have been duly authorized
by the Company and have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and subject to the
Enforceability Exceptions entitled to the benefits of, the Indenture
and will conform to all statements relating thereto in the Prospectus.
8
(vi) The Company's obligations under the Guarantees are subordinate
and junior in right of payment to the prior payment in full of all
Allocable Amounts (as defined in the Indenture) with respect to "Senior
Indebtedness" (as defined in the Indenture) of the Company.
(vii) The Junior Subordinated Debentures are subordinated and junior
in right of payment to the prior payment in full of all Allocable
Amounts (as defined in the Indenture) with respect to "Senior
Indebtedness" (as defined in the Indenture) of the Company.
(viii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein and compliance
by the Company with its obligations hereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Significant Subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the Significant
Subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of the
Significant Subsidiaries is subject (except for conflicts, breaches and
defaults which would not, individually or in the aggregate, be
materially adverse to the Company and its subsidiaries taken as a whole
or materially adverse to the transactions contemplated by this
Agreement), nor will such action result in any material violation of
the provisions of the articles of incorporation or by-laws of the
Company, or any applicable law, administrative regulation or
administrative or court decree.
(c) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(d) The Trust represents and warrants to each Underwriter as
of the date hereof and as of the Closing Time (as hereinafter defined) and as of
the Option Closing Time (as hereinafter defined), if any, as follows:
(i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the a
condition, financial or otherwise, or in the earnings or business
affairs of the Trust, whether or not arising in the ordinary course of
business, and (B) there have been no transactions entered
9
into by the Trust, other than in the ordinary course of business, which
are material with respect to the Trust.
(ii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
best knowledge of the Trust, threatened, against or affecting the Trust
that is required to be disclosed in the Prospectus, other than actions,
suits or proceedings which are not reasonably expected, individually or
in the aggregate, to have a material adverse effect on the condition,
financial or otherwise, or in the earnings or business affairs of the
Trust, whether or not arising in the ordinary course of business; and
there are no transactions, contracts or documents of the Trust that are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations that have not been so filed.
(iii) The Trust possesses adequate certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies to conduct the business now operated by it, and the
Trust has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding would materially and adversely affect the
condition, financial or otherwise, or in the earnings or business
affairs of the Trust.
(iv) The execution, delivery and performance of this Agreement, the
Common Securities Subscription Agreement, the Debenture Subscription
Agreement, the Declaration, the Guarantee Agreements and the
Guarantees, the issuance and sale of the Capital Securities and the
Common Securities, and the consummation of the transactions
contemplated herein and therein and compliance by the Trust with its
obligations hereunder and thereunder have been duly authorized by all
necessary action (corporate or otherwise) on the part of the Trust and
do not and will not result in any violation of the Declaration or
Certificate of Trust and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust under
(A) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Trust is a party or by which
it may be bound or to which any of its properties may be subject or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic
10
or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Trust, or any of
its properties (except for conflicts, breaches, violations or defaults
which would not, individually or in the aggregate, be materially
adverse to the Trust, or materially adverse to the transactions
contemplated by this Agreement).
(e) Each certificate signed by any Trustee of the
Trust and delivered to the Representatives or counsel for the
Underwriters shall be deemed to be a representation and warranty
by the Trust to each Underwriter as to the matters covered
thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in the Schedule B, the number of Initial
Capital Securities set forth in Schedule A opposite the name of such Underwriter
(except as otherwise provided in Schedule B), plus any additional number of
Initial Capital Securities that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several Underwriters
for the Initial Capital Securities shall be an amount equal to the initial
public offering price. The initial public offering price per Capital Security
shall be a fixed price to be determined by agreement between the Representatives
and the Offerors. The initial public offering price and the purchase price are
be set forth in Schedule B. As compensation to the Underwriters for their
commitments hereunder and in view of the fact that the proceeds of the sale of
the Initial Capital Securities will be used to purchase the Junior Subordinated
Debentures of the Company, the Company hereby agrees to pay at Closing Time to
the Representatives, for the accounts of the several Underwriters, a commission
per Initial Capital Security determined by agreement between the Representatives
and the Company for the Initial Capital Securities to be delivered by the Trust
hereunder at Closing Time. The commission is set forth in Schedule B.
(b) Payment of the purchase price, and delivery of
certificates, for the Initial Capital Securities shall be made at the office of
Brown & Wood LLP, or at such other place as shall be agreed upon by the
Representatives, the Company and the Trust, at 10:00 A.M. New York time on the
[third] business day (unless postponed in accordance with the provisions of
Section 10) after
11
the date hereof, or such other time not later than ten business days after such
date as shall be agreed upon by Representatives, the Trust and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer or certified or official
bank check or similar same day funds payable to the order of the Trust to an
account designated by the Trust, against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the Initial Capital
Securities to be purchased by them. Unless otherwise agreed, certificates for
the Initial Capital Securities shall be in the form set forth in the
Declaration, and such certificates shall be deposited with a custodian (the
"Custodian") for The Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under Section 2 hereof by
wire transfer or certified or official bank check or checks payable to the
Representatives in same day funds.
(c) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and conditions set forth
herein, the Trust grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional _______ Option Capital Securities at
the same price per security determined as provided above for the Initial Capital
Securities plus any accrued distributions thereon. The option hereby granted
will expire 30 days after the date hereof, and may be exercised, in whole or in
part, only for the purpose of covering over-allotments upon written notice by
the Representatives to the Trust and the Company setting forth the number of
Option Capital Securities as to which the several Underwriters are exercising
the option, the time and date of payment and delivery thereof. Such times and
dates of delivery (each, on "Option Closing Time") shall be determined by the
Representatives but shall not be later than [three] full business days after the
exercise of such option and not in any event prior to the Closing Time. If the
option is exercised as to all or any portion of the Option Capital Securities,
the Option Capital Securities as to which the option is exercised shall be
purchased by the Underwriters severally and not jointly, in proportion to, as
nearly as practicable, their respective Initial Capital Securities underwriting
obligations as set forth on Schedule A. The Company hereby agrees to pay at the
Option Closing Time to the Representatives, for the accounts of the several
Underwriters, a commission per Option Capital Security equal to the commission
set forth on Schedule B.
In addition, in the event that any or all of the Option Capital
Securities are purchased by the Underwriters, delivery
12
and payment for the Option Capital Securities shall be made at the offices of
Brown & Wood LLP, or at such other place as the Trust, the Company and the
Representatives shall determine, on each Option Closing Time as specified in the
notice from the Representatives to the Company. Delivery of the Option Capital
Securities shall be made to the Representatives against payment by the
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company in the manner set forth in Section 2(b) above.
Unless otherwise agreed, certificates for the Option Capital Securities shall be
in the form set forth in the Declaration, and such certificates shall be
deposited with the Custodian for DTC and registered in the name of Cede & Co.,
as nominee for DTC.
Section 3. Covenants of the Offerors. Each of the Offerors jointly and
severally covenants with each Underwriter as follows:
(a) The Offerors will notify the Representatives promptly, and
confirm the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
(ii) of the receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) The Offerors will give the Representatives notice of their
intention to file or prepare (i) any amendment to the Registration Statement
(including any post-effective amendment), (ii) any amendment or supplement to
the Prospectus (including any revised prospectus which the Offerors propose for
use by the Underwriters in connection with the offering of the Capital
Securities which differs from the prospectus on file at the Commission at the
time the Registration Statement became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), or (iii) any document that would as a result thereof be
incorporated by reference in the Prospectus whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives with copies of any
such amendment, supplement or other document within a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file any
such amendment, supplement or other document or use any such prospectus to which
the Representatives or counsel for the Underwriters shall reasonably object.
Subject to the foregoing, the Offerors will file the Prospectus pursuant to Rule
424(b) and Rule 430A under
13
the Act not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement.
(c) The Offerors will deliver to the Representatives as many
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as the Representatives may reasonably request and will also
deliver to the Representatives a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) The Offerors will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be delivered under
the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the respective applicable rules and regulations
of the Commission thereunder.
(e) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Capital Securities, any
event shall occur as a result of which the Prospectus as then amended or
supplemented will include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading or if it shall be
necessary to amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will,
subject to paragraph (b) above, promptly prepare and file with the Commission
such amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and the Offerors will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Capital Securities (and the Capital Securities
Guarantee) and the Junior Subordinated Debentures for offering and sale under
the applicable securities laws of such states and the other jurisdictions of the
United States as the Representatives may designate; provided, however, that none
of the Offerors shall be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
(g) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (which
need not be audited) of the Company and its subsidiaries, covering an applicable
period beginning not later than the first day of the Company's fiscal quarter
next following the "Effective Date" (as defined in Rule 158(c) under the Act) of
the
14
Registration Statement, which will satisfy the provisions of Section 11(a)
of the 1933 Act.
(h) During a period of 30 days from the date hereof, neither
the Trust nor the Company will, without the Representatives' prior written
consent, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Capital Securities, any security
convertible into or exchangeable into or exercisable for Capital Securities or
the Junior Subordinated Debentures or any junior subordinated debt securities
substantially similar to the Junior Subordinated Debentures or equity securities
substantially similar to the Capital Securities (except for the Junior
Subordinated Debentures and the Capital Securities issued pursuant to this
Agreement), and except for any capital securities with a liquidation amount of
greater than $25 which are non-callable for at least 10 years (except for any
call provisions relating to unanticipated tax or accounting consequences to the
Sponsor, the Trust or holders of such capital securities or status of the Trust
under the 1940 Act) and any junior subordinated debt securities issued in
connection therewith.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of each Offerors' obligations under this Agreement,
and will pay: (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Capital Securities, (iii) the fees and
disbursements of the Company's and the Trust's counsel and accountants, (iv) the
qualification of the Capital Securities, the Capital Securities Guarantee and
the Junior Subordinated Debentures under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of Brown & Wood LLP, counsel for the Underwriters, in connection
therewith and in connection with the preparation of any blue sky survey, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of Securities Dealers, Inc.,
if applicable, (viii) the fees and expenses of the Debenture Trustee, including
the fees and disbursements of counsel for the Debenture Trustee in
15
connection with the Indenture and the Junior Subordinated Debentures, (ix) the
fees and expenses of the Property Trustee, and the Guarantee Trustee, including
the fees and disbursements of counsel for the Property Trustee in connection
with the Declaration and the Certificate of Trust; (x) any fees payable in
connection with the rating of the Capital Securities and Junior Subordinated
Debentures; (xi) the cost and charges of any transfer agent or registrar and
(xii) the cost of qualifying the Capital Securities with DTC.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9 hereof, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of Brown & Wood LLP, counsel
for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Offerors herein contained or in certificates of officers
of the Company, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date hereof, or with the consent of the
Representatives, at a later time and date, not later, however, than 5:30 P.M. on
the first business day following the date hereof, or at such later time and date
as may be approved by the Representatives; and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
1933 Regulations and in accordance with Section 3(b) and prior to Closing Time
the Offerors shall have provided evidence satisfactory to the Representatives of
such timely filing.
(b) At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of the Closing Time, of
Kenneth W. McAllister, General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of North
Carolina, has the corporate power and authority to own its properties,
conduct its business as described in the Prospectus and perform its
obligations under this Agreement, and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
the Significant Subsidiaries are national
16
banking associations formed under the laws of the United States and
authorized thereunder to transact business.
(ii) The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(iii) The Company had at the date indicated (i) a duly authorized
and outstanding capitalization as set forth in the Prospectus, (ii) all
of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, and (iii) the stockholders of the Company have no
preemptive rights.
(iv) Each Significant Subsidiaries (or the successors to such
entities) is a duly organized and validly existing national banking
association under the laws of the United States, continues to hold a
valid certificate to do business as such and has full power and
authority to conduct its business as such.
(v) Each Significant Subsidiary (or the successors to such entities)
has the authority under its jurisdiction of organization to own, lease
and operate its properties and to conduct its business and is duly
authorized to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be
in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise; and all of
the outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable, and all of such shares are owned by the Company,
directly or through one or more subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind, and none of such shares was issued in violation of the
preemptive rights of any stockholder of the Significant Subsidiaries.
(vi) To the best knowledge of such counsel, there is no pending
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its Significant Subsidiaries, of a character required to be
disclosed in the
17
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 Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(vii) The Registration Statement has become effective under the
1933 Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations.
(viii) Each of the Declaration, the Underwriting Agreement, the
Common Securities Subscription Agreement, the Indenture and the
Debenture Subscription Agreement (referred to collectively herein as
the "Operative Documents") has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by the
Enforceability Exceptions, and the Declaration and Indenture have been
duly qualified under the 1939 Act.
(ix) The Junior Subordinated Debentures have been duly authorized
for issuance by the Company; and the Junior Subordinated Debentures,
when executed, authenticated and delivered in the manner provided for
in the Indenture and paid for in accordance with the Debenture
Subscription Agreement will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by the Enforceability Exceptions.
(x) Each of the Capital Securities Guarantee and the Common
Securities Guarantee has been duly authorized, executed and delivered
by the Company and each of the Capital Securities Guarantee and the
Common Securities Guarantee constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by the
Enforceability Exceptions, and the Capital Securities Guarantee has
been duly qualified under the 1939 Act.
18
(xi) The Initial Capital Securities conform in all material respects
to the description thereof contained in the Prospectus and such
description conforms in all material respects to the rights set forth
in the instruments defining the same.
(xii) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act, the 1940 Act, and the
securities or blue sky laws of the various states), which is required
for (A) the valid authorization, issuance, sale and delivery of the
Subordinated Debentures, the Capital Securities Guarantee, and the
Common Securities Guarantee or (B) the execution, delivery or
performance of each of the Operative Documents, as applicable, by
the Company has been received.
(xiii) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate and fairly discuss in all
material respects the information required to be shown.
(xiv) To the best knowledge of such counsel, no default exists in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Prospectus.
(xv) The statements in the Prospectus under the captions "Wachovia
Capital Trust [ ]", "Description of Capital Securities", "Description
of Guarantees", "Description of Junior Subordinated Debentures" and
"Relationship Among the Capital Securities, the Junior Subordinated
Debentures and the Guarantees", to the extent that such statements
constitute matters of law or legal conclusions, have been reviewed by
such counsel, or attorneys in such counsel's office working under such
counsel's direction, and are accurate and fairly present the
information disclosed therein in all material respects.
(xvi) The execution and delivery of each of the Operative Documents,
as applicable, by the Company, the issuance and delivery of the Initial
Capital Securities, the Common Securities, the Junior Subordinated
Debentures, the Capital Securities Guarantee and the Common Securities
Guarantee and the consummation by the Company of the transactions
contemplated in this Agreement and in the Prospectus and compliance by
the Company with the terms of each of the Operative Documents, as
applicable, do not and will not result in any violation of the charter
or By-laws of the
19
Company or any Significant Subsidiary, and do not and
will not conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of, any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary under, (A) any
indenture, mortgage or loan agreement, or any other agreement or
instrument known to such counsel, to which the Company or any
Significant Subsidiary is a party or by which it may be bound or to
which any of its properties may be subject, (B) any existing applicable
law, rule or regulation (other than the securities or blue sky laws of
the various states, as to which such counsel need express no opinion),
(C) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Significant Subsidiary or any of its
properties.
(xvii) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel
need express no opinion, and except to the extent that any statement
therein is modified or superseded in the Prospectus), as of the dates
they were filed with the Commission and as of the date of this
Agreement, appear on their face to have been appropriately responsive
in all material respects to the requirements of the 1934 Act and the
rules and regulations promulgated thereunder.
(xviii) Such counsel, or attorneys in such counsel's office working
under such counsel's direction, have participated in the preparation of
the Prospectus and are familiar with or have participated in the
preparation of the documents incorporated by reference therein and no
facts have come to their attention which leads them to believe that
either the Prospectus (except for the financial statements and other
financial or statistical data included therein or omitted therefrom, as
to which such counsel need express no opinion), as of its date or the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(xix) Neither the Company nor the Trust is, and upon the issuance and
sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus neither will
be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act.
20
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing believed to
be reliable and who are satisfactory to counsel for the Underwriters; and (B) as
to matters of fact, to the extent deemed proper, on the representations and
warranties of the Offerors contained herein or in the Declaration, the
Indenture, the Guarantees, the Common Securities Subscription Agreement, the
Debenture Subscription Agreement or on certificates of responsible officers of
the Company and its subsidiaries and public officials.
(2) The favorable opinion, dated as of the Closing Time, of
Richards, Layton & Finger, Special Delaware counsel to the Offerors, in form and
substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have
been made; the Trust has all necessary power and authority to (A) own
property and to conduct its business as described in the Registration
Statement and the Prospectus, (B) execute, deliver and perform its
obligations under the Operative Documents, (C) issue and perform its
obligations under the Capital Securities and the Common Securities, and
(D) purchase and hold the Junior Subordinated Debentures.
(ii) Each of the Operative Documents to which the Trust is a party
has been duly authorized by the Trust.
(iii) Assuming due authorization, execution and delivery by the
Company and the Trustees, the Declaration is a valid and binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except as
enforcement thereof may be limited by the Enforceability Exceptions.
(iv) The Capital Securities have been duly authorized by the
Declaration and are validly issued and, subject to the terms of the
Declaration, when delivered to and paid for by the Underwriters
pursuant to this Agreement, will be validly issued, fully paid and
non-assessable beneficial interests in the assets of the Trust and are
entitled to the benefits of the Declaration; the holders of the Capital
Securities will, subject to the terms of the Declaration, be entitled
to the same limitation of personal liability under Delaware law as is
extended to stockholders of private corporations for profit; and the
issuance of the Capital
21
Securities is not subject to preemptive or other similar rights.
(v) The execution, delivery and performance of this Agreement, the
Declaration, the Capital Securities and the Common Securities; the
consummation of the transactions contemplated herein and therein; and
the compliance by the Trust with its obligations hereunder and
thereunder do not and will not result in any violation of the
Declaration, the Certificate of Trust or any applicable Delaware law or
administrative regulation thereunder.
(vi) Except as previously made or obtained, as the case may be, no
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court or
Delaware governmental authority or agency is necessary or required in
connection with the execution or delivery by the Trust of the Operative
Documents, or the performance by the Trust of the transactions
contemplated thereby.
(3) The favorable opinion, dated as of the Closing Time, of
the Legal Department of The First National Bank of Chicago, as Property Trustee
under the Declaration and Guarantee Trustee under the Capital Securities
Guarantee Agreement, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The First National Bank of Chicago is a national banking
corporation with trust powers, duly organized, validly existing and in
good standing under the laws of the United States of America with all
necessary power and authority to execute and deliver, and carry out and
perform its obligations under the terms of the Indenture, the
Declaration, the Capital Securities Guarantee Agreement and the Common
Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the Debenture
Trustee of the Indenture and the execution, delivery and performance by
the Property Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement and Common Securities Guarantee Agreement
(collectively, the "Guarantee Agreements") have been duly authorized by
all necessary corporate action on the part of the Debenture Trustee,
the Property Trustee and the Guarantee Trustee, respectively. The
Indenture, the Declaration and the Guarantee Agreements have been duly
executed and delivered by the Debenture Trustee, the Property Trustee
and the Guarantee Trustee, respectively, and constitute the legal,
valid and binding obligations of the Debenture Trustee, the Property
Trustee and the Guarantee Trustee, respectively, enforceable against
the Debenture Trustee, the Property Trustee and the
22
Guarantee Trustee, respectively, in accordance with their terms,
except as enforcement thereof may be limited by the Enforceability
Exceptions.
(iii) The execution, delivery and performance of the Indenture, the,
Declaration and the Guarantee Agreements by the Debenture Trustee,
Property Trustee and the Guarantee Trustee, respectively, does not
conflict with or constitute a breach of the Articles of Association or
Bylaws of the Debenture Trustee, Property Trustee and the Guarantee
Trustee, respectively.
(iv) No consent, approval or authorization of, or registration with
or notice to, any governmental authority or agency of the State of
Illinois or the United States of America governing the banking or trust
powers of The First National Bank of Chicago is required for the
execution, delivery or performance by the Debenture Trustee, the
Property Trustee and the Guarantee Trustee of the Indenture, the
Declaration and the Guarantee Agreements, respectively.
(4) The favorable opinion, dated as of Closing Time, of
Pepper, Hamilton & Scheetz, Special Delaware counsel to First Chicago Delaware
Inc., as Delaware Trustee under the Declaration, in form and substance
satisfactory to counsel for the
Underwriters, to the effect that:
(i) First Chicago Delaware Inc. is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware with all necessary
power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of the Declaration.
(ii) The execution, delivery and performance by First Chicago
Delaware Inc. of the Declaration, has been duly authorized by all
necessary corporate action on the part of First Chicago Delaware Inc.,
and the Declaration has been duly executed and delivered by First
Chicago Delaware Inc. and constitutes the legal, valid and binding
obligation of First Chicago Delaware Inc., enforceable against First
Chicago Delaware Inc. in accordance with its terms, except as
enforcement thereof may be limited by the Enforceability Exceptions.
(iii) The execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of
the Certificate of Incorporation or Bylaws of the Delaware Trustee.
23
(iv) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the State of
Delaware or the United States of America governing the corporate powers
of First Chicago Delaware Inc. is required for the execution, delivery
or performance by the Delaware Trustee of the Declaration.
(5) The favorable opinion, dated as of Closing Time, of Brown
& Wood LLP, counsel for the Underwriters, in form and substance satisfactory to
the Underwriters with respect to the legal existence of the Company and the
Trust, the Capital Securities, the Indenture, the Capital Securities Guarantee
Agreement, this Agreement, the Registration Statement, the Prospectus and other
related matters as the Representatives may require.
In giving its opinion, Brown & Wood LLP may rely as to certain matters
of North Carolina law upon the opinion of Kenneth W. McAllister, General Counsel
to the Company, which shall be delivered in accordance with Section 5(b)(1) and
as to certain matters of Delaware law upon the opinion of Richards, Layton &
Finger, counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(2) hereto.
(6) The favorable opinion of Brown & Wood LLP, special tax
counsel to the Company and the Trust, as to certain Federal tax matters set
forth in the Prospectus Supplement under "Certain Federal Income Tax
Considerations".
(7) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Trust or the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, and the Representatives shall
have received a certificate of a Senior Vice President of the Company and of the
chief financial or chief accounting officer of the Company and a certificate of
the Trustee of the Trust, and dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Trust and
the Company have complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
24
(8) At the Closing Time, Ernst & Young LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to the Representatives), dated as of the Closing Time, in
form and substance satisfactory to the Representatives, confirming that the
response, if any, to Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the
1933 Act and the 1934 Act and the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of the
Company and the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a specified date
not more than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim financial
statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus
and reading the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and Prospectus
to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding the
specific items for which representations are requested below; nothing
has come to their attention as a result of the foregoing procedures
that caused them to believe that:
25
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration
Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis as compared with the
amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more
than five business days prior to the delivery of such letter,
there was any change in the capital stock or the long-term
debt (other than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all instances
for changes or decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or Ernst &
Young LLP shall state any specific changes or decreases.
(iv) The letter shall also state that Ernst & Young LLP has carried
out certain other specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which
are included or incorporated by reference in the Registration Statement
and Prospectus and which are specified by the Representatives and
agreed to by Ernst & Young LLP, and has found such amounts, percentages
and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Ernst & Young LLP
shall have furnished to the Representatives a letter or letters, dated the date
of this Agreement, in form and substance
26
satisfactory to the Representatives, to the effect set forth in this
subsection 8.
(9) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Initial
Capital Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors, in connection with the issuance and sale of the Initial
Capital Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and Brown & Wood LLP, counsel for the
Underwriters.
(10) At Closing Time, at least one "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 1933 Act), has rated the Initial Capital Securities in one of its four
highest rating categories and there shall not have occurred any decrease in the
ratings of any of the securities of the Company or of the Initial Capital
Securities by any nationally recognized statistical rating organization, and no
such organization shall have publicly announced that it has under surveillance
or review its rating of any of the Company's securities or any of the Initial
Capital Securities.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 7, and 8 shall survive any such termination and will remain in full
force and effect.
Section 6. Conditions to Purchase of Option Securities. In the event
the Underwriters exercise the Option to purchase all or any portion of the
Option Capital Securities and the Option Closing Time determined by the
Representatives pursuant to Section 2 is later than the Closing Time, the
obligations of the several Underwriters to purchase and pay for the Option
Capital Securities that they shall have respectively agreed to purchase
hereunder are subject to the accuracy of the representations and warranties of
the Offerors contained herein, to the performance by the Offerors of their
obligations hereunder and to the following additional conditions:
27
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been instituted or threatened; and
any required filing of the Prospectus pursuant to Rule 424(b) under the Act
shall have been made within the proper time period.
(b) As of the Option Closing Time, the Representatives shall
have received, each dated as of the Option Closing Time and relating to the
Option Capital Securities:
(i) the favorable opinions of Kenneth W. McAllister,
General Counsel to the Company, to the same effect as the
opinions required by Section 5(b)(1);
(ii) the favorable opinion of Richards Layton & Finger, Special
Delaware counsel to the Company, to the same effect as the opinion
required by Section 5(b)(2);
(iii) the favorable opinion of the Legal Department of The First
National Bank of Chicago, to the same effect as the opinion required by
Section 5(b)(3);
(iv) the favorable opinion of Pepper, Hamilton & Scheetz, Special
Delaware counsel to First Chicago Delaware Inc., to the same effect as
the opinion required by Section
5(b)(4);
(iv) the favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, to the same effect as the opinion required by Section
5(b)(5);
In giving its opinion, Brown & Wood LLP may rely as to certain matters
of North Carolina law upon the opinion of Kenneth W. McAllister, General Counsel
to the Company, which shall be delivered in accordance with Section 6(b)(i) and
as to certain matters of Delaware law upon the opinion of Richards, Layton &
Finger, counsel for the Offerors, which shall be delivered in accordance with
Section 6(b)(ii) hereto;
(v) the favorable opinion of Brown & Wood LLP, special tax counsel
to the Company and the Trust, to the same effect as the opinion
required by Section 5(b)(6);
(vi) a certificate, of a Senior Vice President of the Company and
of the chief financial or chief accounting officer of the Company with
respect to the matters set forth in Section 5(b)(7);
(vii) a letter from Ernst & Young LLP, in form and substance
satisfactory to the Underwriters, substantially the same in scope and
substance as the letter furnished to
28
the Underwriters pursuant to Section 5(b)(8) except that the
"specified date" in the letter furnished pursuant to this Section
6(b)(vii) shall be a date not more than three days prior to the Option
Closing Time; and
(viii) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (b)(vii) of this Section 6 or (ii) any change
in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries, considered as one
enterprise, the effect of which, in any case referred to in clause (i)
or (ii) of this Section 6(b)(viii), is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the
Prospectus;
(ix) At the Option Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Option Capital Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Offerors
in connection with the issuance and sale of the Option Capital
Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and Brown & Wood LLP, counsel for the
Underwriters; and
(x) At the Option Closing Time, at least one "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the 1933 Act), has rated the Capital Securities in
one of its four highest rating categories and there shall not have
occurred any decrease in the ratings of any of the securities of the
Company or of the Capital Securities by any nationally recognized
statistical rating organization, and no such organization shall have
publicly announced that it has under surveillance or review its rating
of any of the Company's securities or any of the Capital Securities.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Option Closing Time, and such termination shall be
29
2
without liability of any party to any other party except as provided in Section
4 hereof, and except that Sections 1, 7, and 8 shall survive any such
termination and will remain in full force and effect.
Section 7. Indemnification and Contribution
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter and each of its partners, officers, directors,
and employees and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act or the 1934 Act against any losses, claims, damages or
liabilities, and any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and sales of
the Capital Securities), joint or several, which arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Registration Statement, or any amendment or supplement
thereto, including information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations, if applicable, (B) the
Prospectus and any amendment or supplement thereto, or (C) any application or
other document, any amendment or supplement thereto, executed by the Offerors or
based upon information furnished by or on behalf of the Offerors filed in any
jurisdiction in order to qualify the Capital Securities under the securities or
blue sky laws thereof (each, an "Application") or (ii) the omission or alleged
omission to state in the Registration Statement, or any amendment or supplement
thereto, the Prospectus or any amendment or supplement thereto, or any
Application, a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse as incurred each
Underwriter and each such controlling person for any legal and other expenses
incurred in investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that neither of the Offerors
shall be liable to any Underwriter in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, any untrue
statement or alleged untrue statement made in the Prospectus, including any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Offerors by or on behalf of such
Underwriter specifically for inclusion and actually included therein; and
provided further that, as to any Prospectus that has been amended or
supplemented as provided herein, this indemnity agreement shall not inure to the
benefit of any Underwriter, on account of any loss, claim, damage, liability or
action arising out of the sale of Capital Securities to any person by such
Underwriter if (A) such Underwriter failed to send or give a copy of the final
Prospectus as so amended or supplemented to that person at or prior to the
confirmation of the sale of such Capital Securities
30
to such person in any case where such delivery is required by the 1933 Act, and
(B) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in any preliminary
Prospectus was corrected in an amendment or supplement thereto (but only if the
sale to such person occurred after the Offerors provided such Underwriter and
the Underwriter received copies of such amendment or supplement for
distribution). This indemnity agreement will be in addition to any liability
which the Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, the Trust, the Trustees and each of the
Company's directors, each of its officers and each person, if any, who controls
the Company or the Trust within the meaning of the 1933 Act or the 1934 Act, to
the same extent as the foregoing indemnity from the Offerors to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Offerors by such Underwriter and specifically
included in the Prospectus. This indemnity shall be in addition to any liability
which such Underwriter may otherwise have. The Offerors acknowledge that the
statements set forth in the first paragraph on page S-2 of the Prospectus
Supplement and under the headings "Underwriting" in the Prospectus Supplement
and "Plan of Distribution" in the Prospectus constitute the only information
furnished in writing by the several Underwriters for inclusion in the
Prospectus.
(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 one or more
indemnifying parties under this Section 7, notify such indemnifying party or
parties of the commencement thereof; but the omission so to notify the
indemnifying party or parties will not relieve it or them from any liability
which it or they may have to any indemnified party otherwise than under
subsection (a) or (b) of this Section 7 or to the extent that the indemnifying
party was not adversely affected by such omission. In case any such action is
brought against an indemnified party and it notifies an indemnifying party or
parties of the commencement thereof, the indemnifying party or parties against
which a claim is to be made will be entitled to participate therein and, to the
extent that it or they may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified
31
party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the lead Underwriter in the case of
paragraph (a) of this Section 7, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions), or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, which will not be unreasonably withheld, unless such indemnified party
waived its rights under this Section 7 in writing in which case the indemnified
party may effect such a settlement without such consent.
(d) The Company agrees to indemnify the Trust against all
losses, claims, damages or liabilities due from the Trust under Section 7(a)
hereof.
(e) If the indemnification provided for in the preceding
paragraphs of this Section 7 is unavailable or insufficient to hold harmless an
indemnified party under paragraph (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the Offerors or the Underwriters 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 Offerors and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the total discounts and/or commissions received by the
Underwriters bears to the sum of such discounts and/or commissions and the
purchase price of the Capital Securities specified in Schedule B hereto and the
Offerors are responsible
32
for the balance; provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among Underwriters relating to the
offering of the Capital Securities) be responsible for any amount in excess of
the total discounts and/or commissions received by it with respect to the
Capital Securities purchased by such Underwriter under this Agreement and (z) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each person who
controls either of the Offerors within the meaning of either the 1933 Act or the
1934 Exchange Act, each officer or trustee of the Offerors who shall have signed
the Registration Statement and each director or trustee of the Offerors shall
have the same rights to contribution as the Offerors, subject in each case to
clause (y) of this paragraph (e). 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 (e), 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. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers or Trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors and shall survive
delivery of the Capital Securities to the Underwriters.
Section 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by
notice to the Offerors, at any time at or prior to Closing Time or the Option
Closing Time (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
or in the earnings or business affairs of the Trust or the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
33
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Capital Securities or to enforce contracts for the
sale of the Capital Securities, or (iii) if trading in any securities of the
Company or the Trust has been suspended or materially limited by the Commission
or the applicable exchange, or if trading generally on the New York Stock
Exchange, the American Stock Exchange or on the NASDAQ National Market, has been
suspended, limited or restricted or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by said exchanges or such system or by order of the Commission, the NASD or any
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York, North Carolina or Delaware authorities, or (v) if
there has been any decrease in the ratings of any of the securities of the
Company or of the Capital Securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act) or
if any such organization shall have publicly announced that it has under
surveillance or review its rating of any of the Company's securities or any of
the Capital Securities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and except that Sections 1, 7, and 8
shall survive any such termination and will remain in full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or the Option Closing Time to
purchase the Capital Securities or the Option Capital Securities, as the case
may be, that it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Capital Securities or the Option Capital Securities, as the case may be,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Capital Securities or the Option Capital Securities, as the
34
case may be, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the Option Closing Time, as the case may be,
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at
____________________________________, attention of
_______________________________; notices to the Trust, and the Company shall be
directed to them at Wachovia Corporation, 100 North Main Street, Winston-Salem,
North Carolina 27150, attention of Alice Grogan, Esq.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Trust, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and the Company and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Sections 6 and 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 Underwriters
and the Trust and the Company and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Capital Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original,
35
but all such respective counterparts shall together constitute one and the same
instrument.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
WACHOVIA CORPORATION
By:_______________________
Title:
WACHOVIA CAPITAL TRUST [ ]
By:________________________
Title: Trustee
By:________________________
Title: Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
By:
By:________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
37
SCHEDULE A
Number of
Capital
Name of Underwriter Securities
......................................................
......................................................
......................................................
......................................................
......................................................
......................................................
Total.............................
38
SCHEDULE B
Underwriting Agreement dated ____________, 1997
Registration Statement No. 333-19365
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
1. The initial public offering price per security for
the Capital Securities, determined as provided in said
Section 2, shall be _____________.
2. The purchase price per security for the Capital Securities
to be paid by the several Underwriters shall be $______, being an
amount equal to the initial public offering price set forth above,
plus, in the case of Option Capital Securities, any accrued
distributions thereon.
3. The compensation per Capital Securities to be paid by the
Company to the several Underwriters in respect of their commitments
hereunder shall be _________[; provided, however, that the compensation
per Capital Securities for sales of 10,000 or more Capital Securities
to a single purchaser shall be ________].
39