[Debt Securities]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of ____________ between the Company and ____________, as
trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, each shall be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in Schedule I hereto), which has become effective, for the
registration under the Act of the Securities. Such registration
statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in
all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424 or Rule 434 under the Act
a supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration
statement, including the exhibits thereto, as amended at the date of
this Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 or Rule 434 (including the
Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to
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be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture Act
of the Trustee or (B) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be set forth in Schedule II hereto, less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto
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and the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate principal amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates may be deposited with The
Depository Trust Company ("DTC") or a custodian of DTC and registered in the
name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to
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the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment
of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, except with
respect to any such delivery requirement imposed upon an affiliate of
the Company in connection with any secondary market sales, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would 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
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
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request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality
of the Securities for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act; provided, however, the Company may, at any time, offer
or sell or announce the offering of any securities (A) covered by a
registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and pursuant to which the Company issues
securities for its Dividend Reinvestment Plan.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its 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 the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Representatives
the opinion of ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., counsel for the
Company, dated the Closing Date, to
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the effect of paragraphs (i), (iv) and (vi) through (xii) below, and
the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Company, dated
the Closing Date, to the effect of paragraphs (ii), (iii) and (v)
below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of North Carolina, has the corporate power and authority
to own its properties and conduct its business as described in
the Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; NationsBank, National Association, NationsBank,
National Association (South) and NationsBank of Texas,
National Association (or the successors to such entities)
(collectively, the "Principal Subsidiary Banks") are national
banking associations formed under the laws of the United
States and authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor any of the
Principal Subsidiary Banks is required to be qualified or
licensed to do business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital stock of each
Principal Subsidiary Bank have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Banks (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iv) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities are to be listed on the New
York Stock Exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with the New York
Stock Exchange and such counsel has no reason to believe that
the Securities will not be authorized for listing, subject to
official
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notice of issuance and evidence of satisfactory
distribution;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and further subject to 12
U.S.C. 1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy); and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to Delayed
Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of
public policy);
(vii) 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 any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required;
(viii) the Registration Statement has become effective under
the 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
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threatened; the Registration Statement, the Final 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 Act and the Exchange Act and the
respective rules thereunder;
(ix) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company and each constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and
state securities laws, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy);
(x) no consent, approval, authorization or order of
any court or governmental agency or body is required on behalf
of the Company for the consummation of the transactions
contemplated herein or in any Delayed Delivery Contracts,
except such as have been obtained under the Act and such as
may be required under the blue sky or insurance laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the articles of
incorporation or by-laws of the Company or, to the best
knowledge of such counsel, the terms of any material indenture
or other agreement or instrument known to such counsel and to
which the Company or any of the Principal Subsidiary Banks is
a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of the
Principal Subsidiary Banks of any court,
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regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company
or any of its affiliates; and
(xii) to the best knowledge and information of such
counsel, each holder of securities of the Company having
rights to the registration of such securities under the
Registration Statement has waived such rights or such rights
have expired by reason of lapse of time following notification
of the Company's intention to file the Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, it has
no reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
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 certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock &
Stroock & ▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
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(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and
Chief Executive Officer or a Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of
the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder.
(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 Final Prospectus comply as to form in all
material respects with the applicable accounting requirements
of the Act and the regulations
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thereunder with respect to registration statements on Form S-3
and the Exchange Act and the regulations thereunder.
(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
Final 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 Final 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 Final Prospectus, do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration
Statement and Final 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 Final Prospectus or (ii) for the period from the date of
the latest available financial data to a specified date not
more than five business days prior to the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the Registration
Statement and Prospectus discloses have occurred or may occur,
or Price Waterhouse LLP shall state any specific changes or
decreases.
(iv) The letter shall also state that Price Waterhouse 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
Final Prospectus and which are specified by the
Representatives and agreed to by Price Waterhouse 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, Price
Waterhouse 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
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or
affecting the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the
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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
Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out of or
are based upon
- 14 -
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the 1939 Act of
either of the Trustees, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
- 15 -
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the language on the cover page required by Item
509 of Regulation S-K and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate
- 16 -
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and 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 Company 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 underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
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 Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
- 17 -
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).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal, Florida,
Georgia, Maryland, New York, North Carolina, South Carolina, Texas or Virginia
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
- 18 -
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Stroock & Stroock & ▇▇▇▇▇, Seven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
NationsBank ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the
Secretary, with a copy to each of: NationsBank Corporation, NationsBank
Corporate Center, Legal Department, NC 1007-20-1, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel; and ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇,
L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
- 19 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By:
By:__________________________
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
-20-
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day) funds or
wire transfer to an account previously designated to the
Representatives by the Company or, if agreed to by the Representatives
and the Company, by certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City
time, Office of Stroock & Stroock & ▇▇▇▇▇
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from Price Waterhouse delivered
pursuant to Section 5(e) at the time this Agreement is executed:
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
-2-
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , 19 ,
(the "Delivery Date"), $ principal amount of the Company's (the "Securities")
offered by the Company's Final Prospectus dated , 19 , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus accrued interest, if any, thereon from , 19 , to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully registered
form and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal amount
of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Final Prospectus mentioned above.
Promptly after
-3-
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to principles
of conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
-4-