500,000 Capital Securities
BAC
CAPITAL TRUST XV
(a Delaware Trust)
Floating
Rate Capital Securities
(Liquidation Amount of $1,000 per Capital Security)
UNDERWRITING
AGREEMENT
_______________
May 23, 2007
Banc of America Securities LLC
as the Representative of the several Underwriters
c/o Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
BAC Capital Trust XV (the "Trust"), a statutory trust organized under the Statutory Trust Act of the State of Delaware (the "Delaware Act"), and Bank of America Corporation, a Delaware corporation (the "Company" and, together with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with Banc of America Securities LLC and each of the several Underwriters named in Schedule A hereto (collectively, the "Underwriters," which term also shall include any underwriter substituted as hereinafter provided in Section 8 hereof), for whom Banc of America Securities LLC is acting as the Representative (in such capacity, the "Representative"), with respect to the sale by the Trust and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of Floating Rate Capital Securities (liquidation amount of $1,000 per capital security) of the Trust (the "Capital Securities") set forth in Schedule A attached hereto. The Capital Securities will be guaranteed on a subordinated basis by the Company, to the extent set forth in the Prospectus (as defined herein) with respect to distributions and payments upon liquidation, redemption and otherwise (the "Capital Securities Guarantee") pursuant to the Capital Securities Guarantee Agreement, to be dated as of May 31, 2007 (the "Capital Securities Guarantee Agreement"), by and between the Company and The Bank of New York Trust Company, N.A. as trustee (the "Guarantee Trustee"), and will be entitled to the benefits of certain back-up undertakings described in the Prospectus with respect to the Company's agreement pursuant to the Fifteenth Supplemental Indenture (as defined herein) to pay all reasonable expenses relating to administration of the Trust (other than payment obligations with respect to the Capital Securities). The Capital Securities and the related Capital Securities Guarantees are referred to herein as the "Securities."
The Offerors
understand that the Underwriters propose to make an offering of the Securities
as soon as the Representative deems 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 Agreement have been
qualified under the Trust Indenture Act of
1939, as amended, and the rules and
regulations promulgated thereunder (the "Trust Indenture 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") and will be used by
the Trust to purchase $500,100,000 in aggregate principal amount of Floating
Rate Junior Subordinated Notes, due 2056 (the "Junior Subordinated Notes")
issued by the Company pursuant to the Indenture. The Common Securities will be
guaranteed on a subordinated basis by the Company, to the extent set forth in
the Prospectus, with respect to distributions and payments upon liquidation,
redemption, and otherwise (the "Common Securities Guarantee" and,
together with the Capital Securities Guarantee, the "Guarantees")
pursuant to the Common Securities Guarantee Agreement, to be dated as of May 31,
2007 (the "Common Securities Guarantee Agreement" and, together with
the Capital Securities Guarantee Agreement, the "Guarantee Agreements").
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 May 23, 2007 (the "Declaration") among the Company, as Sponsor, James T. Houghton, Ann J. Travis, and Richard L. Nichols, Jr., as trustees (the "Regular Trustees"), The Bank of New York (Delaware), a Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"), and The Bank of New York Trust Company, N.A., a national banking association, as property trustee (the "Property Trustee" and, together with the Delaware Trustee and Regular Trustees, the "Trustees"), and the holders from time to time of undivided beneficial interests in the assets of the Trust. The Junior Subordinated Notes will be issued pursuant to a restated indenture, dated as of November 1, 2001 (the "Base Indenture"), between the Company and The Bank of New York Trust Company, N.A. as successor trustee to The Bank of New York, as trustee (the "Debt Trustee"), as supplemented by a fifteenth supplement to the Base Indenture, to be dated as of May 31, 2007 (the "Fifteenth Supplemental Indenture," and together with the Base Indenture (the "Indenture"), by and between the Company and the Debt 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), as follows:
(i) The Offerors propose to file
with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b) under the Securities Act of 1933, as amended and the
rules and regulations promulgated thereunder (collectively, the "Securities
Act"), a supplement to the form of prospectus included in the registration
statement (referred to below) relating to the Securities and the plan of
distribution thereof and have previously advised you of all further information
(financial and other) with respect to the Offerors to be set forth therein.
Such registration statement on Form S-3 (File No. 333-133852) including the
financial statements, exhibits and schedules thereto and including any required
information deemed to be a part thereof pursuant to Rule 430B under the
Securities Act or the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (collectively, the "Exchange
Act"), at each time of effectiveness, is called the "Registration
Statement." Any preliminary prospectus supplement to the base prospectus
included in the Registration Statement (the "Base Prospectus") that
describes the Securities and the offering thereof and is used prior
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to filing
of the Prospectus is called, together with the Base Prospectus, a "preliminary
prospectus." The term "Prospectus" shall mean the final
prospectus supplement relating to the Securities, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) after the date and time
that this Agreement is executed and delivered by the parties hereto (the "Execution
Time"). Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S‑3 under the Securities Act; any reference to any amendment or
supplement to any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such preliminary
prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated
by reference in such preliminary prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement. All
references in this Agreement to the Registration Statement, a preliminary
prospectus, the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System ("EDGAR")
(except as may be permitted by Regulation S-T under the Securities Act).
(ii) The term "Disclosure Package" shall mean (A) the preliminary prospectus, as it may be amended or supplemented, (B) the issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an "Issuer Free Writing Prospectus"), if any, identified in Schedule C hereto and (C) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of 7:00 p.m. (Eastern time) on the date of this Agreement (the "Initial Sale Time"), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements contained in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Offerors by or on behalf of any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 6(b) hereof (the "Underwriter Information").
(iii) As of the date hereof, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) under the
Securities Act, when any supplement or amendment to the Prospectus is filed
with the Commission, at the Closing Time, and, with respect to the Registration
Statement in (A) and (B) below, as of the Initial Sale Time, (A) the
Registration Statement, as amended as of any such time, the Prospectus, as
amended or supplemented as of any such time, and the Indenture complied,
complies or will comply in all material respects with the applicable provisions
of the Securities Act, the Exchange Act and the Trust Indenture Act, (B) the
Registration Statement, as amended as of any such time, did not, does not and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (C) the Prospectus, as amended or
supplemented as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or
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necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Offerors make no representations or warranties as to (I) that part of
the Registration Statement which shall constitute the Statements of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture Act of
the Debt Trustee, the Property Trustee or the Guarantee Trustee or (II) the Underwriter
Information. The documents which are incorporated or deemed incorporated by
reference in the Disclosure Package, the Registration Statement, the
preliminary prospectus or the Prospectus, when they were filed with the
Commission, complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and did not, when such
documents were so filed, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Commission has not issued any stop order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of the preliminary prospectus or the Prospectus
and the Offerors are without knowledge that any proceedings have been
instituted for either purpose.
(iv) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Trust or the Company and its subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business.
(v) To the best knowledge of the Offerors, PricewaterhouseCoopers LLP, the accountants who certified the financial statements and supporting schedules included in or incorporated by reference into the Registration Statement, is an independent registered public accounting firm as required by the Securities Act.
(vi) The Trust has been duly created and is validly existing and in good standing as a statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus and to enter into and perform its obligations under this 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 Disclosure Package and the Prospectus; the Trust is and will be classified for U.S. federal income tax purposes as a grantor trust and not as an association taxable as a corporation; and the Trust is not and will not be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(vii) 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, the Disclosure Package and
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the 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 Disclosure
Package and the Prospectus; and the issuance of the Common Securities is not
subject to preemptive or other similar rights.
(viii) This Agreement has been duly authorized, executed and delivered by each of the Offerors.
(ix) The Declaration has been duly authorized by the Company, as sponsor, and when validly executed and delivered by the Company and the Regular Trustees, and assuming due authorization, execution and delivery of the Declaration by the Property Trustee and the Delaware Trustee, the Declaration will be a valid and binding obligation of the Company, the Trust and the Regular Trustees, enforceable against the Company and the Regular Trustees in accordance with its terms, subject, 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) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy (collectively, the "Permitted Exceptions") and will conform to all statements relating thereto in the Disclosure Package and the Prospectus; and the Declaration has been duly qualified under the Trust Indenture Act.
(x) 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 trustee thereof, 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 Permitted Exceptions, and each of the Guarantees and the Guarantee Agreements will conform to all statements relating thereto contained in the Disclosure Package and the Prospectus; and the Capital Securities Guarantee Agreement has been duly qualified under the Trust Indenture Act.
(xi) The Capital Securities have been
duly authorized by the Trust pursuant to the Declaration and, when issued and
delivered pursuant to this Agreement and the Declaration 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 assets of the Trust, will be entitled to
the benefits of the Declaration and will conform to all statements relating
thereto contained in the Disclosure Package and 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.
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(xii) Each of the Regular Trustees of the Trust is an employee of the Company and has been duly authorized by the Company to execute and deliver the Declaration.
(xiii) 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 Disclosure Package and 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 and the rules and regulations promulgated thereunder (collectively, the "1940 Act").
(xiv) 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 Notes or the Capital Securities Guarantee hereunder, except such as may be required under the Securities Act or state securities or insurance laws and the qualification of the Declaration, the Capital Securities Guarantee Agreement and the Indenture under the Trust Indenture Act.
(xv) (A) At the earliest time after the Offerors or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) and (B) as of the date of the execution and delivery of this Agreement (with such date being used as the determination date for purposes of this clause (B)), neither Offeror was or is an Ineligible Issuer (as defined in Rule 405 under the Securities Act).
(xvi) No Issuer Free Writing Prospectus (including any Final Term Sheet), as of its issue date and at all subsequent times through the completion of the offering contemplated hereby or until any earlier date that the Company notified or notifies the Representative as described in the next sentence, included, includes or will include any information that conflicted, conflicts, or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein, the preliminary prospectus or the Prospectus, that had not or has not been superseded or modified. If at any time following issuance of an Issuer Free Writing Prospectus and prior to the end of the Prospectus Delivery Period (as defined herein), there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or the Prospectus, the Company has promptly notified or will promptly notify the Representative and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from an Issuer Free Writing Prospectus based upon and in conformity with Underwriter Information.
(xvii) The Offerors have not distributed
and will not distribute, prior to the later of the Closing Time and the
completion of the Underwriters' distribution of the Capital Securities, any
offering material in connection with the offering and sale of the Securities
other than the Registration Statement, the preliminary prospectus, the Prospectus,
or any
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Issuer Free Writing Prospectus reviewed and consented to by the Representative
and included in Schedule C hereto.
(b) The Company represents and warrants to each Underwriter as of the date hereof and as of the Closing Time as follows:
(i) The Company meets the requirements for use of Form S-3 under the Securities Act and has filed with the Commission the Registration Statement, which has been declared effective. The Registration Statement meets the requirements of Rule 415(a)(1) under the Securities Act and complies in all material respects with said rule.
(ii) (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company, the Trust or any person acting on their respective behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) at the Execution Time (with such time being used as the determination time for purposes of this clause (D)), the Company was and is a "well‑known seasoned issuer" as defined in Rule 405 under the Securities Act. The Registration Statement is an "automatic shelf registration statement," as defined in Rule 405 under the Securities Act, neither the Company nor the Trust has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form.
(iii) The Company has complied and will comply with all the provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes, 1987, as amended, and all regulations promulgated thereunder relating to issuers doing business in Cuba; provided, however, that in the event that such Section 517.075 shall be repealed, or amended such that issuers shall no longer be required to disclose in prospectuses information regarding business activities in Cuba or that a broker, dealer or agent shall no longer be required to obtain a statement from issuers regarding such compliance, then this representation and agreement shall be of no further force and effect.
(iv) The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware with corporate power (A) to own, lease and
operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus, (B) to enter into and perform its
obligations under this Agreement, the Declaration, as Sponsor, the Indenture
and each of the Guarantee Agreements and (C) 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
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standing
which, taken as a whole, are not material to the Company and its subsidiaries,
considered as one enterprise.
(v) Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business; all of the issued and outstanding capital stock of the Principal Subsidiary Bank has been duly authorized and validly issued, is fully paid and non-assessable; and the capital stock of the Principal Subsidiary Bank is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) 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 Permitted Exceptions; the Indenture will conform to all statements relating thereto contained in the Disclosure Package and the Prospectus; and the Indenture has been duly qualified under the Trust Indenture Act.
(vii) The Junior Subordinated Notes have been duly authorized by the Company and, when duly executed by the Company and authenticated in the manner provided for in the Indenture and delivered against payment therefor as described in the Disclosure Package and 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 Permitted Exceptions, and will be in the form contemplated by, and, subject to the Permitted Exceptions, entitled to the benefits of, the Indenture and will conform to all statements relating thereto in the Disclosure Package and the Prospectus.
(viii) The Company's obligations under the Guarantee Agreements are subordinate and junior in right of payment to all liabilities of the Company and are pari passu with the most senior preferred stock issued by the Company.
(ix) The Junior Subordinated Notes are subordinated and junior in right of payment to all "Senior Obligations" (as defined in the Indenture) of the Company.
(x) 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.
(xi) 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 Principal Subsidiary Bank pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which
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the Company or the Principal Subsidiary Bank is a party or
by which either of them may be bound, or to which any of the property or assets
of the Company or the Principal Subsidiary Bank 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 amended and restated certificate 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 Underwriters 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 follows:
(i) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Trust, whether or not arising from transactions 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 to the Trust.
(ii) Except as disclosed in the Disclosure Package and 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 Disclosure Package and 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 other), earnings, business or properties of the Trust, whether or not arising from transactions 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 Securities Act 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, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding would materially and adversely affect the condition (financial or other), earnings, business or properties of the Trust.
(iv) The execution, delivery and
performance of this Agreement and the Declaration, 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
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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 the Certificate of
Trust for the Trust dated as of May 3, 2006 (the "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.
(e) Each certificate signed by any Trustee of the Trust and delivered to the Underwriters 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.
(f) Each Underwriter, severally and not jointly, represents and agrees that:
(1) it will comply with all applicable rules of the National Association of Securities Dealers, Inc. (the "NASD"); and
(2) it has not and will not, directly or indirectly, offer, sell or deliver any of the Capital Securities or distribute the preliminary prospectus, the Prospectus or any other offering materials relating to the Capital Securities (including any free writing prospectuses) in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance with any applicable laws and regulations thereof.
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 Schedule B, the number of 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 Capital Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof.
The purchase
price per security to be paid by the several Underwriters for the Capital
Securities shall be an amount equal to the initial public offering price. The
initial public offering price per Capital Security and the purchase price per
Capital Security are 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 Capital Securities will be used to purchase the
Junior Subordinated Notes of the Company, the Company hereby agrees to pay at
the Closing Time to the Underwriters, a commission per Capital Security
determined by agreement between the Representative and the Company for the Capital
Securities to be delivered by the Trust hereunder at the Closing Time. The
commission is set forth in Schedule B.
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(b) Payment of the purchase price and delivery of certificates for the Capital Securities shall be made at the offices of Morrison & Foerster LLP, or at such other place as shall be agreed upon by the Representative, the Company and the Trust, at 9:00 A.M. New York time on the fifth business day (unless postponed in accordance with the provisions of Section 8) after the date hereof, or such other time not later than ten business days after such date as shall be agreed upon by the Representative, the Trust and the Company (such time and date of payment and delivery being herein called the "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 Representative for the respective accounts of the Underwriters of certificates for the Capital Securities to be purchased by them. Unless otherwise agreed, certificates for the 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.
(c) At the Closing Time, the Company will pay, or cause to be paid, the commission payable at such time to the Underwriters under this Section 2 hereof by wire transfer or certified or official bank check or checks payable to the Representative in same day funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and severally covenants with each Underwriter as follows:
(a) During
the period beginning on the Initial Sale Time and ending on the later of the Closing
Time or such date, as in the opinion of counsel for the Underwriters, the
Prospectus is no longer required by law to be delivered in connection with
sales by an Underwriter or dealer (except for delivery requirements imposed
because such Underwriter or dealer is an affiliate of the Company or the Trust),
including in circumstances where such requirement may be satisfied pursuant to
Rule 172 (the "Prospectus Delivery Period"), the Offerors will notify
the Representative 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 filing of any
supplement to the Disclosure Package, the Prospectus or any document filed
pursuant to the Exchange Act which will be incorporated by reference in the
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, (iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Disclosure Package or the Prospectus (other
than with respect to a document filed with the Commission pursuant to the Exchange
Act which will be incorporated by reference in the Registration Statement, the
preliminary prospectus and the Prospectus), (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Disclosure Package or the Prospectus or for additional
information relating thereto (other than such a request with respect to a
document filed with the Commission pursuant to the Exchange Act which will be
incorporated by reference in the Registration Statement, the preliminary
prospectus and the Prospectus), and (v) 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.
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(b) Prior to the termination of the offering of the Capital Securities, the Offerors (1) will give the Representative notice of their intention to file or prepare (i) any amendment to the Registration Statement (including any post‑effective amendment) (other than with respect to a document filed with the Commission pursuant to the Exchange Act which will be incorporated by reference in the Registration Statement, the preliminary prospectus and Prospectus that is not filed to correct a misstatement, an omission or non-compliance that is the subject of a notice delivered to the Underwriters pursuant to paragraph (e) below (a "Periodic Filing")), or (ii) any amendment or supplement to the Disclosure Package or 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) under the Securities Act) (other than with respect to a Periodic Filing), will furnish the Representative with copies of any such amendment, supplement or other document within a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment, supplement or other document or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object and (2) will furnish the Representative with copies of any document that will be incorporated by reference in the preliminary prospectus or the Prospectus whether pursuant to the Securities Act, the Exchange Act or otherwise. Subject to the foregoing, the Offerors will file the preliminary prospectus and the Prospectus pursuant to Rule 424(b) under the Securities Act within the time required by such rule.
(c) The Offerors will deliver to the Representative as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the Representative may reasonably request.
(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 Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Securities Act.
(e) If
at any time when the Prospectus is required by the Securities Act to be
delivered in connection with sales of the Capital Securities, except with respect
to any such delivery requirement imposed upon an affiliate of the Offerors in
connection with any secondary market sales, any event shall occur as a result
of which the Disclosure Package or 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 Disclosure Package or the Prospectus in
order to comply with the requirements of the Securities Act, 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 (including, if consented to by
the Representative, by means of an Issuer Free Writing Prospectus), give
immediate notice, and confirm in writing, to the Underwriters to cease the
solicitation of offers to purchase the Capital Securities, and furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
12
(f) The Offerors will endeavor, in cooperation with the Underwriters, to qualify the Capital Securities (and the Capital Securities Guarantee) and the Junior Subordinated Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters may designate; provided, however, that neither 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 Securities Act) of the Registration Statement, which will satisfy the provisions of Section 11(a) of the Securities Act.
(h) The Offerors will use reasonable efforts to effect the listing of the Capital Securities on the New York Stock Exchange; if the Capital Securities are exchanged for Junior Subordinated Notes, the Company will use its reasonable best efforts to effect the listing of the Junior Subordinated Notes on the exchange on which the Capital Securities were then listed.
(i) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(j) Until the business day following the Closing Time, neither the Company nor the Trust will, without the consent of the Representative, offer or sell, or announce the offering of, any additional 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 (i) covered by a registration statement on Form S-8 or (ii) covered by a registration statement on Form S-3, and (A) pursuant to which the Company issues securities under one of the Company's medium-term note programs (including, without limitation, the Company's Series K Medium-Term Notes program and the Company's InterNotes program), (B) pursuant to which the Company issues securities for its dividend reinvestment plan, (C) pursuant to which the Company issues securities in underwritten offerings in one or more non-U.S. currencies in which one of the lead managers is Banc of America Securities LLC, or (D) pursuant to which affiliates of the Company offer securities of the Company in secondary market transactions.
(k) The Offerors will prepare a final term sheet containing only a description of the Capital Securities, in a form approved by the Representative and contained in Schedule D of this Agreement, and will file such term sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule (such term sheet, the "Final Term Sheet"). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(l) The
Offerors represent that each has not made, and agree that, unless they obtain
the prior written consent of the Representative, they will not make, any offer
relating to the
13
Capital Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a "free writing prospectus"
(as defined in Rule 405 under the Securities Act) required to be filed by an Offeror
with the Commission or retained by an Offeror under Rule 433 of the Securities
Act; provided that the prior written consent of the Representative shall be
deemed to have been given in respect of the Issuer Free Writing Prospectuses
included in Schedule C hereto. Any such free writing prospectus consented to
by the Representative is hereinafter referred to as a "Permitted Free
Writing Prospectus." The Offerors agree that (i) they have treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) they have complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 under the Securities
Act applicable to any Permitted Free Writing Prospectus, including in respect
of timely filing with the Commission, legending and record keeping. The Offerors
consent to the use by any Underwriter of a free writing prospectus that
(a) is not an "issuer free writing prospectus" as defined in
Rule 433, and (b) contains only (i) information describing the
preliminary terms of the Capital Securities or their offering, (ii) information
that describes the final terms of the Capital Securities or their offering and
that is included in the Final Term Sheet of the Offerors contemplated in
paragraph (k) above or (iii) information permitted by Rule 134 of the Securities
Act.
(m) If immediately prior to the third anniversary (the "Renewal Deadline") of the initial effective date of the Registration Statement, any of the Capital Securities remain unsold by the Underwriters, the Company and the Trust will prior to the Renewal Deadline file, if they have not already done so and the Company is eligible to do so, a new automatic shelf registration statement relating to the Capital Securities, in a form satisfactory to the Representative. If the Company is no longer eligible to file an automatic shelf registration statement, the Company and the Trust will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Capital Securities, in a form satisfactory to the Representative, and will use their best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company and the Trust will take all other action necessary or appropriate to permit the public offering and sale of the Capital Securities to continue as contemplated in the expired registration statement relating to the Capital Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(n) If
at any time when Capital Securities remain unsold by the Underwriters the
Company or the Trust receives from the Commission a notice pursuant to
Rule 401(g)(2) under the Securities Act or the Company otherwise ceases to
be eligible to use the automatic shelf registration statement form, the Company
will (i) promptly notify the Representative, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating
to the Capital Securities, in a form satisfactory to the Representative,
(iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective and (iv) promptly notify
the Representative of such effectiveness. The Company and the Trust will take
all other action necessary or appropriate to permit the public offering and
sale of the Capital Securities to continue as contemplated in the registration
statement that was the subject of the Rule 401(g)(2) notice or for which
the Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
14
(o) The Company agrees to pay the required Commission filing fees relating to the Capital Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
(p) The Offerors will apply the net proceeds from the sale of the Capital Securities sold by them in the manner described under the caption "Use of Proceeds" in each of the preliminary prospectus and the Prospectus.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to the performance of each Offeror's obligations under this Agreement, and will pay for: (i) the preparation, filing, printing, and delivery to the Underwriters of copies of the Registration Statement, any Issuer Free Writing Prospectus, the preliminary prospectus and the Prospectus as originally filed and of each amendment or supplement thereto, (ii) the copying of this Agreement, (iii) the preparation, issuance and delivery of the certificates for the Capital Securities, including capital duties, stamp duties and transfer taxes, if any, payable upon issuance of any of the Securities, or the sale of the Securities, (iv) the fees and disbursements of the Company's and the Trust's counsel and accountants, (v) the qualification of the Capital Securities, the Capital Securities Guarantee and the Junior Subordinated Notes under applicable securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the fees and disbursements of Morrison & Foerster LLP, counsel for the Underwriters, in connection therewith and in connection with the preparation of any blue sky survey, (vi) the printing and delivery to the Underwriters of copies of any blue sky survey, (vii) any fee of the NASD, if applicable, (viii) the fees and expenses of the Debt Trustee, including the fees and disbursements of counsel for the Debt Trustee in connection with the Indenture and the Junior Subordinated Notes, (ix) the preparation, printing, reproduction and delivery to the Underwriters of copies of the Indenture, the Declaration, the Certificate of Trust and the Guarantee Agreements, (x) the fees and expenses of the Property Trustee, the Delaware Trustee and the Guarantee Trustee, including the fees and disbursements of counsel for the Property Trustee, the Delaware Trustee and the Guarantee Trustee in connection with the Declaration and the Certificate of Trust and the Guarantee Agreements and the Guarantees, as applicable, (xi) any fees payable in connection with the rating of the Capital Securities and Junior Subordinated Notes, (xii) the cost and charges of any transfer agent or registrar, and (xiii) the cost of qualifying the Capital Securities and the Junior Subordinated Notes with DTC.
If this Agreement is terminated by the Representative in accordance with the provisions of Section 5 or Section 7 hereof, the Company shall reimburse the Underwriters for all of their reasonable out‑of‑pocket expenses, including the reasonable fees and disbursements of Morrison & Foerster LLP, counsel for the Underwriters.
SECTION 5. CONDITIONS
OF UNDERWRITERS' OBLIGATIONS. The obligations of the Underwriters hereunder
are subject to the accuracy of the respective representations and warranties of
the Offerors herein contained or in certificates of officers of the Company or
trustees of the Trust, to the performance by the Offerors of their respective obligations
hereunder, and to the following further conditions:
15
(a) For the period from and after effectiveness of this Agreement and through to the Closing Time:
(i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission, and the Company and the Trust shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Capital Securities are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Time);
(ii) the Company shall have filed the preliminary prospectus and the Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) At the Closing Time, the Representative shall have received:
(1) The favorable opinion of Helms Mulliss & Wicker, PLLC, counsel for the Company and the Trust, dated as of the Closing Time, to the effect of paragraphs (i) and (v) through (xviii) below, and the favorable opinion of the General Counsel to the Company (or such other attorney in such department, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated as of the Closing Time, to the effect of paragraphs (ii), (iii) and (iv) below:
(i) The Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; the Principal Subsidiary Bank is a national banking association formed under the laws of the United States and authorized thereunder to transact business.
(ii) The Company and the Principal
Subsidiary Bank are qualified or licensed to do business as a foreign
corporation in any jurisdiction in which such counsel has
16
knowledge that the
Company or the Principal Subsidiary Bank, as the case may be, is required to be
so qualified or licensed.
(iii) All the outstanding shares of capital stock of the Principal Subsidiary Bank have been duly and validly authorized and issued and are fully paid and (except as provided in 12 U.S.C. § 55, as amended) non-assessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Principal Subsidiary Bank (except directors' qualifying shares) are owned beneficially, directly or indirectly, by the Company free and clear of any perfected security interest and such counsel is without knowledge of any other security interests, claims, liens or encumbrances.
(iv) Such counsel is without knowledge that (A) there is any pending or threatened action, suit or proceeding before or by 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, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (B) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required.
(v) The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company or the Trust has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; the Registration Statement, the Disclosure Package and 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 Securities Act, the Exchange Act and the Trust Indenture Act.
(vi) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution, and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent enforcement thereof may be limited by the Permitted Exceptions, 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.
(vii) No authorization, approval,
consent or order of any court or governmental authority or agency or body in
the United States is necessary or required on behalf of the Company or the
Trust in connection with the offering, issuance or sale of the Capital
Securities, the Capital Securities Guarantee and the Junior Subordinated Notes
by the Offerors, except (A) such as may be required under the Securities Act
and such as may be
17
required under the blue sky, state securities, insurance or
similar laws of the United States, and (B) the qualification of the
Declaration, the Capital Securities Guarantee Agreement and the Indenture under
the Trust Indenture Act.
(viii) The Declaration has been duly authorized, executed and delivered by the Company and the Regular Trustees and has been duly qualified under the Trust Indenture Act.
(ix) Each of the Guarantee Agreements has been duly authorized, executed and delivered by the Company; the Capital Securities Guarantee Agreement, assuming it is duly authorized, executed and delivered by the Guarantee Trustee, constitutes 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 Permitted Exceptions; and the Capital Securities Guarantee Agreement has been duly qualified under the Trust Indenture Act. The Common Securities Guarantee Agreement constitutes 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 Permitted Exceptions. The Guarantees and the Guarantee Agreements conform in all material respects to the descriptions thereof in the Disclosure Package and the Prospectus.
(x) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution, and delivery thereof by the Debt Trustee, is 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 Permitted Exceptions; the Indenture has been duly qualified under the Trust Indenture Act; and the Indenture conforms in all material respects to the description thereof in the Disclosure Package and the Prospectus.
(xi) The Junior Subordinated Notes have been duly authorized and when executed and authenticated in the manner provided in the Indenture and delivered against payment therefor, 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 Permitted Exceptions; and the Junior Subordinated Notes conform in all material respects to the description thereof in the Disclosure Package and the Prospectus.
(xii) 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 Disclosure Package and the Prospectus neither will be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the 1940 Act.
(xiii) The forms of the Common
Securities and the Capital Securities and the Declaration conform in all
material respects to the descriptions thereof contained in the Disclosure
Package and the Prospectus.
18
(xiv) All of the issued and outstanding Common Securities of the Trust are directly owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(xv) The Trust is not a party to or otherwise bound by any agreement other than those described in the Disclosure Package and the Prospectus.
(xvi) This Agreement has been duly executed and delivered by the Trust.
(xvii) Neither the issuance and sale of the Junior Subordinated Notes or the Guarantees, nor the consummation of any other of the transactions herein contemplated or contemplated by the Indenture or the Guarantee Agreements, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (A) the certificate of incorporation or by-laws of the Company, (B) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (C) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank.
In giving their opinions required by this Section, but without opining in connection therewith, such counsel also shall state, that although such counsel expresses no view as to portions of the Registration Statement, the Disclosure Package or the Prospectus consisting of financial statements and other financial, accounting, and statistical information and such counsel 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, the Disclosure Package or the Prospectus or any amendment or supplement thereto (other than as stated in (ix), (x), (xi), (xiii) above), such counsel has no reason to believe that such remaining portions of the Registration Statement or any amendment thereto as of the time it became effective, the Initial Sale Time, and as of the date of such counsel's opinion, contained or contains 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 that, subject to the foregoing with respect to financial statements and other financial, accounting and statistical information, the Disclosure Package, as of the Initial Sale Time, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of circumstances under which they were made, not misleading, or that the Prospectus, as amended or supplemented, as of its date and as of the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
In rendering
such opinions, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of North Carolina,
the General Corporate Law of the State of Delaware, 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
19
the extent
deemed proper, on the representations and warranties of the Offerors contained
herein or in the Declaration, the Indenture, the Guarantee Agreements, that
certain subscription agreement, of even date herewith, between the Company and
the Trust covering the Common Securities and that certain note purchase
agreement, of even date herewith, between the Company and the Trust, or on
certificates of responsible officers of the Company and its subsidiaries and
public officials.
(2) The favorable opinion of Richards, Layton & Finger P.A., 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 statutory 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 statutory trust have been made; the Trust has all necessary power and authority to own property and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement, the Capital Securities and the Common Securities.
(ii) Assuming due authorization, execution and delivery by the Company and the Trustees, the Declaration is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by the Permitted Exceptions.
(iii) The Common Securities have been duly authorized by the Declaration and upon execution and delivery in accordance with the terms of the Declaration will be validly issued and represent undivided beneficial interests in the assets of the Trust.
(iv) The Capital Securities have been duly authorized by the Declaration and, subject to the terms of the Declaration, when delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued, and (subject to the qualifications set forth in this paragraph) fully paid and non-assessable undivided beneficial interests in the assets of the Trust; 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. The Holders may be obligated, pursuant to the Declaration, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from the transfer or exchange of Capital Securities certificates and the issuance of replacement Capital Securities certificates and (ii) provide security or indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and remedies under the Declaration.
(v) This Agreement has been duly authorized by the Trust.
(vi) The issuance and sale by the
Trust of the Capital Securities and the Common Securities, the execution,
delivery and performance by the Trust of this
20
Agreement, the consummation by
the Trust of the transactions contemplated hereby and the compliance by the
Trust with its obligations hereunder will not violate (A) any of the provisions
of the Certificate of Trust or the Declaration or (B) any applicable Delaware
law or administrative regulation.
(3) The favorable opinion of Richard, Layton & Finger, P.A., relating to The Bank of New York (Delaware), as Delaware Trustee under the Declaration, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York (Delaware) 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 the Delaware Trustee of the Declaration have been duly authorized by all necessary corporate action on the part of the Delaware Trustee. The Declaration has been duly executed and delivered by the Delaware Trustee, and constitutes the legal, valid and binding obligation of the Delaware Trustee, enforceable against the Delaware Trustee in accordance with its terms, except as enforcement thereof may be limited by the Permitted Exceptions.
(iii) The execution, delivery and performance of the Declaration by the Delaware Trustee does not conflict with or constitute a breach of the articles of organization or bylaws of the Delaware Trustee.
(iv) No consent, approval or authorization of, or registration with or notice to, any Delaware or federal banking authority is necessary or required for the execution, delivery or performance by the Delaware Trustee of the Declaration.
(4) The favorable opinion, dated as of the Closing Time, of Emmet, Marvin & Martin, LLP, counsel to The Bank of New York Trust Company, N.A., as Debt Trustee under the Indenture, as Guarantee Trustee under the Capital Securities Guarantee Agreement, and as Property Trustee under the Declaration, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York Trust Company, N.A., is duly organized and is validly existing as a national banking association organized and in good standing under the laws of the United States with all necessary power and authority to execute and deliver, and to carry out and perform its obligations under the terms of the Indenture, the Declaration and the Capital Securities Guarantee Agreement.
(ii) The execution, delivery and
performance by the Debt Trustee of the Indenture, the execution, delivery and
performance by the Property Trustee of the Declaration, and the execution,
delivery and performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement have been duly authorized by all necessary corporate action
on the part of the Debt Trustee, the Property Trustee and the Guarantee
Trustee, respectively. The Indenture has been duly executed and delivered by
the Debt Trustee, and constitutes the legal, valid and binding obligations of
the Debt Trustee,
21
enforceable against the Debt Trustee in accordance with its
terms, except as enforcement thereof may be limited by the Permitted Exceptions.
The Declaration has been duly executed and delivered by the Property Trustee,
and constitutes the legal, valid and binding obligations of the Property
Trustee, enforceable against the Property Trustee in accordance with its terms,
except as enforcement thereof may be limited by the Permitted Exceptions. The
Capital Securities Guarantee Agreement has been duly executed and delivered by
the Guarantee Trustee, and constitutes the legal, valid and binding obligations
of the Guarantee Trustee, enforceable against the Guarantee Trustee in
accordance with its terms, except as enforcement thereof may be limited by the
Permitted Exceptions.
(iii) The execution, delivery and performance of the Indenture by the Debt Trustee does not conflict with or constitute a breach of the Articles of Organization or Bylaws of the Debt Trustee. The execution, delivery and performance of the Declaration by the Property Trustee does not conflict with or constitute a breach of the Articles of Organization or Bylaws of the Property Trustee. The execution, delivery and performance of the Capital Securities Guarantee Agreement by the Guarantee Trustee does not conflict with or constitute a breach of the Articles of Organization or Bylaws of the Guarantee Trustee.
(iv) No consent, approval or authorization of, or registration with or notice to, any New York or federal banking authority is necessary or required for the execution, delivery or performance by (A) the Debt Trustee of the Indenture, (B) the Property Trustee of the Declaration, or (C) the Guarantee Trustee of the Capital Securities Guarantee Agreement.
(5) The favorable opinion, dated as of the Closing Time, of Morrison & Foerster LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters with respect to the legal existence of the Company and the Trust, the Capital Securities, the Indenture, the Capital Securities Guarantee Agreement, this Agreement, the Registration Statement, the Disclosure Package, the Prospectus and any other related matters as the Representative may require.
In giving its opinion, Morrison & Foerster LLP may rely as to certain matters of (i) Delaware law upon the opinion of Richards, Layton & Finger P.A., counsel for the Offerors, which shall be delivered in accordance with Section 5(b)(2) hereto and (ii) North Carolina law upon the opinion of Helms Mulliss & Wicker, PLLC, which shall be delivered in accordance with Section 5(b)(1) hereto.
(6) The favorable opinion of Morrison & Foerster LLP, special tax counsel to the Company and the Trust, as to certain federal tax matters set forth in the Disclosure Package and the Prospectus under "Certain U.S. Federal Income Tax Considerations."
(c) At
the 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,
the Disclosure Package and the Prospectus, any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or other), earnings, business or
22
properties of the Trust or the
Company and its subsidiaries, considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except as set
forth or contemplated in the Disclosure Package and the Prospectus, and the Representative
shall have received a certificate of any Senior Vice President or Treasurer or
any other authorized officer of the Company and a certificate of a Regular
Trustee of the Trust, and dated as of the Closing Time, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Disclosure Package, the Prospectus and this Agreement and they are without
knowledge that: (i) there has been any material adverse change or any
development involving a prospective material adverse change in the condition
(financial or other), earnings, business or properties of the Trust or the
Company and its subsidiaries, considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except as set
forth or contemplated in the Disclosure Package and the Prospectus, (ii) the
representations and warranties in Section 1 hereof are not true and correct
with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Trust or the Company, as the case may be, has not
performed or complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Time,
(iv) any stop order suspending the effectiveness of the Registration Statement
has been issued or any proceedings for that purpose have been initiated or
threatened by the Commission, and (v) any litigation or proceeding shall be
threatened or pending to restrain or enjoin the issuance or delivery of the Capital
Securities, or which in any way affects the validity of the Capital Securities.
(d) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters, dated the date of this Agreement, in form and substance satisfactory to the Representative, stating in effect that:
(1) They are an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(2) 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, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act.
(3) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(i) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the board of directors of the Principal Subsidiary Bank 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;
(ii) Performing the procedures
specified by the American Institute of Certified Public Accountants for a
review of interim financial information as described in Statement of Accounting
Standards No. 100, Interim Financial Information, on the unaudited condensed
consolidated interim financial statements of the Company and its
23
consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the preliminary prospectus and the 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, the preliminary prospectus and the Prospectus to the date of the
latest available interim financial data; and
(iii) 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:
(a) the unaudited condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act;
(b) any material modifications should be made to the unaudited condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus, for them to be in conformity with generally accepted accounting principles; or
(c) (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 common stock and additional paid-in capital or the consolidated long-term debt (other than scheduled repayments of such debt) 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, the preliminary prospectus 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 common stock and additional paid-in capital or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and the subsidiaries on a consolidated basis, except in all instances for changes or decreases which the Registration Statement, the preliminary prospectus and the Prospectus discloses have occurred or may occur, or PricewaterhouseCoopers LLP shall state any specific changes or decreases.
(4) The letter shall also state that
PricewaterhouseCoopers 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, the preliminary prospectus and the Prospectus and which are
specified by the Representative and agreed to by PricewaterhouseCoopers 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.
24
In addition, at the Closing Time, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters, dated the Closing Time, in form and substance satisfactory to the Representative, to the effect set forth in this paragraph (d).
(e) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in the immediate prior sub-section or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Trust or the Company and its subsidiaries, considered as one enterprise, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Capital Securities as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(f) At the 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 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 Capital Securities as herein contemplated shall be satisfactory in form and substance to the Representative and Morrison & Foerster LLP, counsel for the Underwriters.
(g) At the Closing Time, at least one "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), has rated the Capital Securities in one of its four highest rating categories and (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any such nationally recognized statistical rating organization, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
(h) There shall not have come to the Representative's attention any facts that would cause the Representative to believe that the Disclosure Package, as of the Initial Sale Time, or the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of such delivery, not misleading.
(i) In
connection with the sale and purchase of the Capital Securities, if any
condition specified in this Section with respect thereto shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to the 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, 6, and 7 shall survive any such termination and will remain in
full force and effect.
25
SECTION 6. INDEMNIFICATION AND CONTRIBUTION
(a) The Offerors jointly and severally agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Underwriter and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such Underwriter or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with the Underwriter Information 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 Trust Indenture Act of the Debt Trustee, Guarantee Trustee, or Delaware Trustee. The indemnity agreement set forth in this Section 7(a) shall be in addition to any liabilities that the Offerors may otherwise have.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Trust, the Trustees, the Company, each of the Company's directors, each of
the Company's officers and each of the Trustees who signed the Registration
Statement, and each person, if any, who controls the Company or the Trust
within the meaning of the Securities Act or the Exchange Act, against any loss,
claim, damage, liability or expense, as incurred, to which the Company or the Trust,
or any such director, officer, Trustee or controlling person may become
subject, insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon any
untrue statement or alleged untrue statement of a material fact contained in
the preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, and only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with the
26
Underwriter
Information; and to reimburse the Company, the Trust, or any such director,
officer, Trustee or controlling person for any legal and other expense
reasonably incurred by the Company, the Trust, or any such director, officer,
Trustee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The Offerors hereby acknowledges that the only information
that the Underwriters have furnished to the Offerors expressly for use in the
Registration Statement, the Disclosure Package or the Prospectus (or any
amendment or supplement thereto) are the names of the Underwriters, the
sentences relating to concessions and reallowances under the caption "Underwriting"
in the preliminary prospectus and the Prospectus, and the paragraph relating to
stabilization and syndicate covering transactions under the caption "Plan
of Distribution" in the Base Prospectus. The indemnity agreement set
forth in this Section 6(b) shall be in addition to any liabilities that each
Underwriter may otherwise have. Furthermore, the Representative has advised the
Trust that it intends to make a market in the Capital Securities, as set forth
under the caption "Underwriting" in the Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any liability other than the indemnification obligation provided in paragraph
(a) or (b) above. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, 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 a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties
that 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 assume 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 such
indemnifying party's 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 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (other than local counsel approved
by the Representative)), representing the indemnified parties who are parties
to such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
27
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in Sections 6(a) through (d) is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Offerors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Offerors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Offerors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Offerors, and the total underwriting commissions received by the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover. The relative fault of the Offerors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to information supplied by the Offerors, on the one hand, or the Underwriters, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 6(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The
provisions set forth in Section 6(c) with respect to notice of commencement of
any action shall apply if a claim for
28
contribution is to be made under this
Section 6; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given in
accordance with Section 6(c) for purposes of indemnification. The Offerors and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 6(e) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 6(e).
Notwithstanding the provisions of this Section 6(e), no Underwriter shall be required to contribute any amount in excess of the underwriting discounts received by such Underwriter in connection with the Securities underwritten by it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 6(e) are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 6(e), each Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company and each Trustee of the Trust who signed the Registration Statement, and each person, if any, who controls the Company or the Trust within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company or the Trust. 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, as contemplated by the preceding paragraph. However, 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 (e).
(f) The Company agrees to indemnify the Trust against all losses, claims, damages or liabilities incurred by the Trust under Section 6(a) hereof.
SECTION 7. TERMINATION OF AGREEMENT. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Offerors 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, or (ii) a banking moratorium or a material disruption in the commercial banking or securities settlement or clearance services in the United States shall have been declared by federal or New York State authorities, or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis (in the United States or elsewhere) the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representative, impracticable to market the Securities.
SECTION 8. DEFAULT
BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters shall
fail at the Closing Time to purchase all or part of the Capital Securities that
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make
29
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 Representative 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 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 this Agreement shall terminate without liability on the part of any non‑defaulting Underwriter, the Company, or the Trust.
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 Representative or the Offerors shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Disclosure Package, the Registration Statement or Prospectus or in any other documents or arrangements.
SECTION 9. 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 them at Banc of America Securities LLC, NY1‑301‑29‑01 9 West 57th Street, New York, NY 10019, Attn: Caspar Bentinck, Principal, with a copy to: Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, New York 10104-0050, Attn: James R. Tanenbaum; notices to the Trust and the Company shall be directed to them at Bank of America Corporation, Corporate Treasury, Securities Administration, Bank of America Corporate Center, NC1-007-07-06, 100 North Tryon Street, Charlotte, N.C. 28255, with a copy to each of: Bank of America Corporation, Legal Department, NC1-002-29-01, 101 South Tryon Street, Charlotte, North Carolina 28255, Attn.: General Counsel; and Helms Mulliss & Wicker, PLLC, 201 North Tryon Street, Charlotte, North Carolina 28202, Attn.: Boyd C. Campbell, Jr.
SECTION 10. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Trust, and 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 Section
6 and their heirs and legal Representative, 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 Representative,
30
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 11. NO FIDUCIARY DUTIES; AGREEMENT COMPLETE
(a) Each of the Company and the Trust acknowledges and agrees that: (i) the purchase and sale of the Capital Securities pursuant to this Agreement, including the determination of the public offering price of the Capital Securities and any related discounts and commissions, is an arm's-length commercial transaction between the Company and the Trust, on the one hand, and the several Underwriters, on the other hand, and each of the Company and the Trust is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, or its affiliates, stockholders, creditors or employees or any other party, including the Trust; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or the Trust with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Trust on other matters) and no Underwriter has any obligation to the Company or the Trust with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company or the Trust and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and each of the Company and the Trust has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(b) This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Trust and the several Underwriters, or any of them, with respect to the subject matter hereof. Each of the Company and the Trust hereby waives and releases, to the fullest extent permitted by law, any claims that the Company or the Trust may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
SECTION 12. 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 13. 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.
31
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and 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.
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Very truly yours, |
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BANK OF AMERICA CORPORATION |
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By: |
/s/ B. Kenneth Burton, Jr. |
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Name: B. Kenneth Burton, Jr. |
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Title: Senior Vice President |
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BAC CAPITAL TRUST XV |
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By: |
/s/ Richard L. Nichols, Jr. |
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Name: Richard L. Nichols, Jr. |
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Title: Regular Trustee |
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CONFIRMED AND ACCEPTED, |
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as of the date first above written: |
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Banc of America Securities LLC |
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For itself and as the Representative |
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of the several Underwriters named in |
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Schedule A hereto. |
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By: BANC OF AMERICA SECURITIES LLC |
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By: |
/s/ Lily Chang |
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Name: Lily Chang |
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Title: Principal |
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SCHEDULE
A
500,000 Capital Securities
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NAME OF UNDERWRITERS |
NUMBER OF CAPITAL SECURITIES |
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Banc of America Securities LLC |
485,000 |
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Bear, Stearns & Co. Inc. |
5,000 |
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BNY Capital Markets, Inc. |
5,000 |
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Loop Capital Markets LLC |
2,500 |
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The Williams Capital Group, L.P. |
2,500 |
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Total |
500,000 |
SCHEDULE B
Underwriting Agreement dated May 23, 2007
Registration Statement No. 333-133852
Underwriters: Banc of America Securities
LLC
Address of Underwriters:
c/o Banc of America Securities LLC
NY1-301-29-01
9 West 57th Street
New York, NY 10019
Attention: Caspar Bentinck
Title, Purchase Price and Description of Securities:
Title: BAC Capital Trust XV Floating Rate Capital Securities
1. The initial public offering price per security for the Capital Securities, determined as provided in said Section 2, shall be $1,000.
2. The purchase price per security for the Capital Securities to be paid by the several Underwriters shall be $1,000, being an amount equal to the initial public offering price set forth above.
3. The compensation per Capital Security to be paid by the Company to the several Underwriters in respect of their commitments hereunder shall be $10.00.
Closing Time and Location: May 31, 2007, 9:00 A.M. New York City time, Offices of Morrison & Foerster LLP and Helms Mulliss & Wicker, PLLC.
Stock Exchange Listing: None.
SCHEDULE C
ISSUER FREE WRITING PROSPECTUS
The Final Term Sheet as set forth in Schedule D.
SCHEDULE D
Filed
Pursuant to Rule 433
Registration
No. 333-133852
BAC CAPITAL TRUST XV
500,000
FLOATING RATE
CAPITAL SECURITIES
FINAL TERM SHEET
Dated May 23, 2007
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Issuer: |
BAC Capital Trust XV |
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Ratings: |
Aa2(Moody's)/A+(S&P)/AA-(Fitch) |
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Size: |
500,000 capital securities |
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Issue Price and Liquidation Amount: |
$1,000 per capital security |
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Issue Amount of Capital Securities: |
$500,000,000 |
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Cash Distributions: |
Cumulative quarterly distributions in arrears on the stated liquidation amount of $1,000 per capital security at an annual floating rate equal to Three-Month LIBOR plus the applicable spread. |
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Distribution Dates: |
March 1, June 1, September 1, and December 1 of each year, beginning September 1, 2007. |
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Cumulative: |
Yes |
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Day Count: |
Actual/360 |
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Maturity of BAC Junior Subordinated Notes: |
June 1, 2056, unless prepaid earlier. |
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Interest Rate of BAC Junior Subordinated Notes: |
Three-Month LIBOR plus 0.800% per $1,000 principal amount for each quarterly distribution period from, and including, May 31, 2007 to June 1, 2037; Three-Month LIBOR plus 1.800% for the period from June 1, 2037 to, but excluding, the Maturity Date or an earlier prepayment date of the Junior Subordinated Notes. |
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Interest Payment Dates of BAC Junior Subordinated Notes: |
March 1, June 1, September 1, and December 1 of each year, beginning on September 1, 2007, subject to adjustment as described in the prospectus. |
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Additional Interest on Deferred Distributions: |
Annual floating rate equal to Three-Month LIBOR plus the then applicable spread of the unpaid distributions, compounded quarterly. |
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Redemption Provisions: |
The capital securities have no stated maturity but must be redeemed upon the maturity of the Bank of America Corporation Junior Subordinated Notes on June 1, 2056 or their earlier prepayment. |
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First Optional Call Date: |
June 1, 2037 |
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Ranking and Subordination: |
As of March 31, 2007, the Issuer had Senior Obligations (as defined in the prospectus) outstanding of approximately $131.2 billion, which includes commercial paper and other short-term borrowings outstanding. The Issuer also had outstanding approximately $15.3 billion of other previously issued junior subordinated notes and corresponding guarantees. These notes and corresponding guarantees generally rank equally with junior subordinated notes and the guarantee relating to the capital securities offered by the applicable prospectus supplement. However, these notes and the guarantees rank senior to the notes and guarantees issued in connection with our BAC Capital Trust XIII and BAC Capital Trust XIV offerings. We issued approximately $1.55 billion of indebtedness in connection with those two offerings. |
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Cash Payment Deferral: |
Up to 20 quarters |
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Public Offering Price: |
$500,000,000 in the aggregate |
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Calculation Agent: |
The Bank of New York Trust Company, N.A. |
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Bookrunning Manager: |
Banc of America Securities LLC |
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Senior Co-Managers: |
Bear, Stearns & Co. Inc. |
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BNY Capital Markets, Inc. |
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Junior Co-Managers: |
Loop Capital Markets LLC |
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The Williams Capital Group, L.P |
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Settlement Date: |
May 31, 2007 (DTC) |
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Listing: |
None |
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CUSIP: |
05518W AA1 |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll free at 1-800-294-1322 or you may e-mail a request to dg.prospectus_distribution@bofasecurities.com.