Exhibit 1.1
[Debt Securities]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"). The Securities will be issued under [an
indenture dated as of January 1, 1995 between the Company and The Bank of New
York, as trustee (the "Trustee") as supplemented by the First Supplemental
Indenture dated as of September 18, 1998 and the Second Supplemental Indenture
dated as of May 7, 2001 (as so supplemented, the "Indenture")] [an indenture
dated as of January 1, 1995 between the Company and The Bank of New York, as
trustee (the "Trustee") as supplemented by the First Supplemental Indenture
dated as of August 28, 1998 (as so supplemented, the "Indenture")]. The
Securities are described more fully in the Final Prospectus, referred to below.
If the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties.
[(a)] The Company represents and warrants to, and agrees with,
each Underwriter that:
(i) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on such form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of the
Securities. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b) or Rule 434 under the Act a
supplement to the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, including the final prospectus in preliminary
form, in the form in which it shall be filed with the Commission pursuant to
Rule 424(b) or Rule 434 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this Agreement,
or the issue date of the Basic Prospectus, or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference. The Final
Prospectus, if filed by electronic transmission pursuant to the Commission's
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX") (except as
may be permitted by Regulation S-T under the Act), was identical to the copy
thereof delivered to the Underwriters for use in connection with the offer and
sale of the Securities.
(ii) As of the date hereof, when the Final Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule 434 under the
Act, when any supplement or amendment to the Final Prospectus is filed with the
Commission, at the Closing Date (as hereinafter defined) and, with respect to
(i) and (ii) below, when the Registration Statement became effective, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and the Indenture
will comply in all material respects with the applicable provisions of the Act,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Exchange Act and the respective rules and regulations of the Commission
thereunder, (ii) the Registration Statement, as amended as of any such time,
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture Act of the
Trustee or (B) the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement and any Final Prospectus. If Rule 434 is used, the Company will comply
with the requirements of Rule 434 applicable to it. The documents which are
incorporated by reference in the Final Prospectus or from which information is
so incorporated by reference, when they were filed with the Commission, complied
in all material respects with the requirements of the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder, as
applicable, and did not, when such documents
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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, and any documents so filed and incorporated by reference
subsequent to the effective date of the Registration Statement, when they were
filed with the Commission, conformed in all material respects with the
requirements of the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder, as applicable. 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 Final Prospectus and the
Company is without knowledge that any proceedings have been instituted for
either purpose.
[(b) Each Underwriter represents and agrees that it has not and
will not, directly or indirectly, offer, sell or deliver any of the Securities
or distribute the Final Prospectus or any other offering materials relating to
the Securities 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 and that, to the best of its knowledge
and belief, will not impose any obligations on the Company except as set forth
herein.]/1/
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereto (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof in the manner set forth in
Schedule I hereto. Unless otherwise agreed, certificates for the Securities
shall be in the form set forth in Schedule I hereto, and such certificates may
be deposited with The Depository Trust Company ("DTC") or a custodian for DTC
and registered in the name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment to the Registration Statement or
supplement to the Basic Prospectus (including the Final Prospectus) unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause the Final Prospectus
to be filed with the Commission pursuant to Rule 424 or Rule 434 via XXXXX. The
Company will advise the Representatives promptly (i) when the Final Prospectus
shall have been
______________
/1/ To be included only with respect to issuances involving non-U.S.
distributions.
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filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Securities shall have
become effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final Prospectus
or for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in connection with
any secondary market sales, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules
and regulations thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later than 60
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the Act) covering a twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by institutional
investors; provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
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(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or announce
the offering of, any securities covered by the Registration Statement or by any
other registration statement filed under the Act; provided, however, the Company
may, at any time, offer or sell or announce the offering of any securities (A)
covered by a registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and (i) pursuant to which the Company issues securities
under one of the Company's medium-term note programs (including, without
limitation, the Company's InterNotes program) or (ii) pursuant to which the
Company issues securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates furnished pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and the
Final Prospectus shall have been filed with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxx Mulliss & Wicker, PLLC, counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i) and (iv) through (xii) below, and
the opinion of Xxxx X. Xxxxxxx, General Counsel to the Company (or such other
attorney, 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 the Closing Date, to the effect of paragraphs
(ii) and (iii) 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 Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended; 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;
(ii) each of the Company and the Principal Subsidiary
Bank is qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has 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
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as provided in 12 U.S.C. (S) 55, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank (except directors' qualifying shares) are
owned, 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) the Indenture and the Securities conform in all
material respects to the descriptions thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the [______]
Stock Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting documents
with respect to the Securities with the [________] Stock Exchange and such
counsel received no information stating that the Securities will not be
authorized for listing, subject to official notice of issuance and evidence of
satisfactory distribution;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument of the Company enforceable
against the Company 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. (S)1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public policy; and the
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their 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.
(S)1818(b)(6)(D) and similar bank regulatory powers and to the application of
principles of public policy;
(vii) such counsel is without knowledge that (1) 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 or the Final Prospectus which is omitted or not
adequately disclosed therein, or (2) any franchise, contract or other document
of a character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit to the Registration Statement, is not
so described or filed as required;
(viii) the Registration Statement has become effective
under the Act; no stop order suspending the effectiveness of the Registration
Statement has been issued and, to such counsel's knowledge, no proceeding for
that purpose has been instituted or threatened; and the Registration Statement,
the Final Prospectus and each amendment thereof or supplement
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thereto (other than the financial statements and other financial and statistical
information contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder;
(ix) this Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company enforceable against the Company 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 except insofar as the enforceability of
the indemnity and contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject to 12 U.S.C.
(S)1818(b)(6)(D) and similar bank regulatory powers and to the application of
principles of public policy;
(x) no consent, approval, authorization or order of any
court or governmental agency or body is necessary or required on behalf of the
Company for the consummation of the transactions contemplated herein, except
such as have been obtained under the Act and such as may be required under the
blue sky or insurance laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the issuance and sale of the Securities, nor
the consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or by-laws of the
Company or (1) 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 (2) 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; and
(xii) such counsel is without knowledge of any rights to
the registration of securities of the Company under the Registration Statement
which have not been waived by the holders of such rights or which have not
expired by reason of lapse of time following notification of the Company's
intention to file the Registration Statement.
In rendering such opinion, but without opining in connection therewith,
such counsel also shall state that, although it expresses no view as to portions
of the Registration Statement consisting of financial statements and other
financial, accounting and statistical information and it has not independently
verified, is not passing upon and assumes no responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Final Prospectus or any amendment or supplement thereto (other than
as stated in (iv) above), it has no reason to believe that such remaining
portions of the Registration Statement or any amendment thereto at the time it
became effective and as of the date of such opinion contained
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any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, subject to the foregoing with respect to financial
statements and other financial, accounting and statistical information, the
Final Prospectus, as amended or supplemented, as of its date and as of the date
of such opinion contained or contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina, the United States, or the General Corporation Law of the State
of Delaware to the extent deemed proper and specified in such opinion, upon the
opinion of counsel to the Underwriters, or upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to counsel for
the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and its subsidiaries and
public officials.
(c) The Representatives shall have received from Stroock & Stroock
& Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Final Prospectus and any other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, Chief Executive
Officer or a Senior Vice President, and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Final Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in
this Agreement are not true and correct with the same force and effect as though
expressly made at and as of the Closing Date and the Company has not performed
or complied with all the agreements and satisfied all the conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the
Registration Statement has been issued or any proceedings for that purpose have
been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, 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 Company
and its subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more
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of the Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that the response, if any, to
Item 10 of the Registration Statement is correct insofar as it relates to them
and stating in effect that:
(i) They are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable published rules
and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act and the rules and regulations of the Commission
thereunder with respect to registration statements on Form S-3 and the Exchange
Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board of directors, executive committee and audit committee of
the Company and the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a specified date not more
than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Accounting Standards No. 71,
Interim Financial Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and Final Prospectus
and reading the unaudited interim financial data, if any, for the period from
the date of the latest balance sheet included or incorporated by reference in
the Registration Statement and Final Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration Statement and Final
Prospectus, for them to be in conformity with generally accepted accounting
principles;
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(3) (i) at the date of the latest
available interim financial data and at the specified date not more than five
business days prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than scheduled
repayments of such debt) or any decreases in shareholders' equity of the Company
and the subsidiaries on a consolidated basis as compared with the amounts shown
in the latest balance sheet included or incorporated by reference in the
Registration Statement and the Final Prospectus or (ii) for the period from the
date of the latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than scheduled repayments of such
debt) or any decreases in shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all instances for changes or
decreases which the Registration Statement and Final Prospectus discloses have
occurred or may occur, or PricewaterhouseCoopers LLP shall state any specific
changes or decreases.
(iv) 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 and Final Prospectus and which are specified by the
Representatives 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.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter
or letters, dated the date of this Agreement, in form and substance satisfactory
to the Representatives, to the effect set forth in this paragraph (e) and in
Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) On or after the date hereof and prior to the Closing (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, 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.
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(i) There shall not have come to the Representatives' attention
any facts that would cause the Representatives to believe that the Final
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.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement 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 Securities to
the Underwriters, including capital duties, stamp duties and transfer taxes, if
any, payable upon issuance of any of the Securities, the sale of the Securities
to the Underwriters and the fees and expenses of any transfer agent or trustee
for the Securities, (iv) the fees and expenses of counsel to any such transfer
agent or trustee, (v) the fees and disbursements of the Company's counsel and
accountants, (vi) the qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(e), including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
Survey, (vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto and of
the Final Prospectus and any amendments or supplements thereto, (viii) the
printing and delivery to the Underwriters of copies of any Blue Sky Survey, and
(ix) the fees of the National Association of Securities Dealers, Inc., (x) the
preparation, printing, reproduction and delivery to the Underwriters of copies
of the Indentures and all supplements and amendments thereto, (xi) any fees
charged by rating agencies for the rating of the Securities, (xii) the fees and
expenses of any depository and any nominee thereof in connection with the
Securities, [and, (xiii) if applicable, the fees of the ________ Stock
Exchange.]
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the
11
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out of or
are based upon omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Final Prospectus, or any
amendment or supplement thereof, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or Final Prospectus or any amendment or supplement
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of either of the Trustees, and (ii) such indemnity with respect to
the Basic Prospectus or the Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the Registration Statement or Final Prospectus or
any amendment or supplement thereof. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that (i) the names of the Underwriters and the statements required
by Item 508 of Regulation S-K set forth in the language on the cover page or
under the heading "Underwriting" or "Plan of Distribution," (ii) the sentences
relating to concessions and reallowances, and (iii) the paragraph related to
stabilization and syndicate covering transactions in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement or Final
12
Prospectus or any amendment or supplement thereto, and the Representatives
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel), approved by the Representatives
in the case of subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the
13
Securities) be responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder and (z) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any non-defaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such exchange, 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
14
elsewhere) the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 6
and 7 hereof and this Section 10 shall survive the termination or cancellation
of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attn: Xxxxx X. Xxxxxxxxx; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX
1007-20-1, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Xxxx X. Xxxxxxx, General
Counsel; and Xxxxx Mulliss & Wicker, PLLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attn: Xxxx X. Xxxxxxxx, Xx.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By: _________________________
Name:
Title:
15
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By: __________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day) funds or wire
transfer to an account previously designated to the Representatives by the
Company or, if agreed to by the Representatives and the Company, by certified or
official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City time, Office
of Stroock & Stroock & Xxxxx LLP
Listing:
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed:
17
SCHEDULE II
Underwriters: Principal Amount
of Securities to
be Purchased:
18
