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Exhibit 1
FORM OF UNDERWRITING AGREEMENT
$[ ],000,000
Capital Securities
WACHOVIA CAPITAL TRUST [ ]
(a Delaware Trust)
UNDERWRITING AGREEMENT
[ ], 1998
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 $1,000 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 $1,000 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
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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 [ ],
1998, 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. [ ]) 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 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
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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 [ ], 1998, 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 [ ], 1998 (the "Declaration") (as may be
further amended, if necessary, subject to the exercise of the Option), among the
Company, as Sponsor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, 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 31, 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 [ ], 1998 (the "Supplemental Indenture,"
and together with the Base 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
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"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 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 [ ], 1998, between
the Company and the Trust (the "Common Securities Subscription
Agreement"), the Debenture Subscription Agreement, dated as of
[ ], 1998, 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
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generally or by general principles of equity (regardless of whether
enforcement is 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 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).
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(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 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) Wachovia Bank, National Association (or the successor
to such entity) (the "Significant Subsidiary") 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;
the 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
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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.
(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 the Significant Subsidiary
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or the Significant
Subsidiary 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 the Significant
Subsidiary 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
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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 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 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.
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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
▇▇▇▇▇ & ▇▇▇▇ 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 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
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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 and payment for the
Option Capital Securities shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇ 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
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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 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 Registration Statement, which will satisfy the
provisions of Section 11(a) of the 1933 Act.
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(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 $1,000 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇▇ & ▇▇▇▇ 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 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 ▇▇▇▇▇ & 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
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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
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, 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 Subsidiary is a national 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) The Significant Subsidiary (or the successor to such
entity) 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) The Significant Subsidiary (or the successor to such
entity) 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
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the Company and its subsidiaries, considered as one enterprise; and all
of the outstanding shares of capital stock of the 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 Subsidiary.
(vi) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or the Significant Subsidiary, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract, or
other document of a character required to be described in the
Registration Statement or 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
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Enforceability Exceptions, and the Capital Securities Guarantee has
been duly qualified under the 1939 Act.
(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 Company or the 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 the 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 the
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
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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 the
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) Nothing has come to such counsel's attention which
would lead such counsel to believe (A) that the Registration Statement
(except for the financial statements and related schedules included
therein or omitted therefrom, as to which such counsel need express no
opinion), on the original effective date of the Registration Statement
or on the date of the Underwriting Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (B) that the Prospectus (except for the
financial statements and related schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), at the
time the Prospectus was issued or as of the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and related schedules
included therein or omitted therefrom, as to which such counsel need
express no opinion, and except to the extent that any statement therein
is modified or superseded in the Prospectus), as of the dates they were
filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(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.
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.
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(2) The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 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:
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(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
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 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, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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
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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.
(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
▇▇▇▇▇ & ▇▇▇▇ 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 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, ▇▇▇▇▇ & Wood LLP may rely as to certain matters
of North Carolina law upon the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(2) hereto.
(6) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇ 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.
(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
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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:
(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;
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(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 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 ▇▇▇▇▇ & ▇▇▇▇ 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.
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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:
(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 ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, General Counsel to the Company, to the same effect
as the opinions required by Section 5(b)(1);
(ii) the favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
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, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇ & Wood LLP,
counsel for the Underwriters, to the same effect as the
opinion required by Section 5(b)(5);
In giving its opinion, ▇▇▇▇▇ & ▇▇▇▇ LLP may rely as to certain matters
of North Carolina law upon the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, counsel for the Offerors, which shall be delivered in accordance with
Section 6(b)(ii) hereto;
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(v) the favorable opinion of ▇▇▇▇▇ & 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 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
▇▇▇▇▇ & ▇▇▇▇ 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
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writing, at any time at or prior to Option 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 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 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
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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 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.
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(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 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 ▇▇▇▇ ▇▇▇) 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
international political, financial or
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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 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
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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, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇▇▇▇▇▇, 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, but all such respective counterparts shall together
constitute one and the same instrument.
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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.
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SCHEDULE A
Number of
Capital
Name of Underwriter Securities
------------------- ----------
......................................................
......................................................
......................................................
......................................................
......................................................
......................................................
Total ..................................................................
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SCHEDULE B
Underwriting Agreement dated [ ], 1998
Registration Statement No.:
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 [ ].]
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