BANK OF AMERICA CORPORATION UNDERWRITING AGREEMENT (6 1/4% Senior Notes, due 2012)
UNDERWRITING AGREEMENT (6 1/4% Senior Notes, due 2012)
To the Representativesnamed in Schedule I
hereto of the Underwriters
named in Schedule II hereto
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"). 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
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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.
(ii) 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. 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 the Final Prospectus. If Rule 434 is used, the Company will comply with the requirements of Rule 434 applicable to it. 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, severally and not jointly, represents and agrees
that:
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(i) 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
material relating to the Securities in 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.
(ii) In particular, (A) it has not offered or sold and will not offer or sell any Securities to persons in the United Kingdom prior to the expiration of the period six months from the Closing Date, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (whether as principal or agent) for the purpose of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulation 1995, (B) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (the "FSMA") with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(l) of the FSMA does not apply to the Company. 2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be set forth in Schedule II hereto, less the respective amounts of Contract Securities (as defined below) determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company
may authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives,
for the account of the Underwriters, on the Closing Date, the percentage
set forth in Schedule I hereto of the principal amount of the Securities
for which Delayed Delivery Contracts are made. Delayed Delivery Contracts
may only be made with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will make Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged
by the Underwriters have been approved by the Company but, except as the
Company may otherwise agree, each such Delayed Delivery
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Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto, less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters' Securities shall be made on the date and at the time specified in Schedule I hereto, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof in the manner set forth in Schedule I hereto. Unless otherwise agreed, certificates for the Underwriters' Securities shall be in the form set forth in Schedule I hereto, and such certificates may be deposited with The Depository Trust Company ("DTC") or a custodian 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 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.
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(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.
(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 or (ii) pursuant to which the Company issues securities for its
dividend reinvestment plan.
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(g) The Company will use its best efforts to effect the listing of the
Securities on the Luxembourg Stock Exchange.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the effectiveness
of any amendment to the Registration Statement filed prior to the Closing
Date (including the filing of any document incorporated by reference therein)
and as of the Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall have been issued and no proceedings
for that purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed 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 Xxxxxx X. Xxxxxxx, Associate General Counsel to 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 as provided in 12 U.S.C. § 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; <Page 6
(v) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy);
(vi) 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 not so disclosed or 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;
(vii) 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 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 and the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(viii) this Agreement and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and each constitutes
a legal, valid and binding agreement of the Company enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable
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principles that may limit the right to specific enforcement of remedies,
and except insofar as the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D)
and similar bank regulatory powers and to the application of principles
of public policy);
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required on behalf of the Company for the consummation of the transactions contemplated herein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky or insurance laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, result in a breach of, or constitute a default under the 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;
(xi) 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; and
(xii) the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange, and such counsel has received no information stating that the Securities will not be authorized for listing.
In rendering such opinion, but without opining in connection therewith,
such counsel shall also state that, although it has not independently verified,
is not passing upon and assumes no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Final Prospectus or any amendment or supplement thereto (other than as
stated in (iv) above), it has no reason to believe that the Registration
Statement or any amendment thereto at the time it became effective and
as of the date of such opinion contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Final Prospectus, as amended or supplemented, as of its date and the date
of such opinion, contained or contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of North
Carolina or the United States, or the General Corporation Law of the State
of Delaware to the extent deemed proper and specified in such opinion,
upon the opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Underwriters; and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock & Stroock & 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, any Delayed Delivery Contracts, 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 and Chief Executive Officer or a Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has not complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement, as amended, has been issued or any proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any 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 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:
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(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 rules and regulations of the Commission 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) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company.
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If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out
of or are based upon 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 the Trustee,
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
<Page
12
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 the statements set forth in the last paragraph on the front cover page and the names of the Underwriters appearing on the front cover page of the Final Prospectus, and, under the heading "Underwriting", (i) the names of the Underwriters appearing on page S-17, (ii) the sentences relating to concessions and reallowances, and (iii) the paragraph related to stabilization and syndicate covering transactions, constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and 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
<Page 13
preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Representatives in the case of subparagraph (a), representing the indemnified parties under subparagraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on the grounds of policy or otherwise, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and the purchase price of the Securities specified in Schedule I hereto and the Company is responsible for the balance; provided, however, that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of the Act or the Exchange 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
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14
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, (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 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, 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 Department, NC1-002-29-01, 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
<Page 15
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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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16
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: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: BANC OF AMERICA SECURITIES LLC
By: /S/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: Principal
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<Page
17
SCHEDULE I
Underwriting Agreement dated April 17, 2002
Registration Statement No. 333-83503
Representatives: Banc of America
Securities LLC
Barclays Capital Inc.
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxx & Company
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
The Royal Bank of Scotland plc
UBS Warburg LLC
Xxxxxxxx Capital Partners, L.P.
Address of Representatives: c/o Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxx, Principal
Title, Purchase Price and Description of Securities:
Title: 6 1/4% Senior Notes, due 2012
Principal amount: $1,000,000,000
Purchase price (include type of funds and accrued interest or amortization,
if applicable): 99.310%; 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: none
Redemption provisions: Except in those situations in which the Company
may become obligated to pay additional amounts (as described in the Final
Prospectus), the Securities of this series are not subject to redemption
at the option of the Company or repayment at the option of the holder prior
to maturity.
Other provisions: none
<Page
Closing Date, Time and Location: April 22, 2002, 9:00 A.M. New York
City time, office of
Stroock & Stroock & Xxxxx LLP
Listing: Application will be made to list the Securities on the Luxembourg Stock Exchange
Delayed Delivery Arrangements: none
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: none
<Page
SCHEDULE II
| Underwriters | Principal Amount of Securities to be Purchased |
| Banc of America Securities LLC...................................
Barclays Capital Inc. ................................................... Bear, Xxxxxxx & Co. Inc. ............................................ Credit Suisse First Boston Corporation ....................... Xxxxxxx, Sachs & Co. .............................................. Xxxxxx & Company ................................................. Xxxxxx Brothers Inc. ................................................ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ... Xxxxxxx Xxxxx Barney Inc. ........................................ The Royal Bank of Scotland plc ................................ UBS Warburg LLC ................................................... Xxxxxxxx Capital Partners, L.P .................................. |
$ 890,000,000
10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 10,000,000 |
| TOTAL | ===========
$1,000,000,000 |
<Page
SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Bank of America Corporation (the "Company"), and the Company agrees to sell to the undersigned, on , 20 , (the "Delivery Date"), $ principal amount of the Company's (the "Securities") offered by the Company's Final Prospectus dated , 20 , receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof, plus accrued interest, if any, thereon from , 20 , to the date of payment and delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 A.M. on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date.
The obligation
of the undersigned to take delivery of and make payment for Securities
on the Delivery Date, and the obligation of the Company to sell and deliver
Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before
the Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Securities as is to be sold to them pursuant
to the Underwriting Agreement referred to in the Final Prospectus mentioned
above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make payment
for the Securities, and the obligation of the Company to cause the Securities
to be sold and delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant to other
contracts similar to this contract.
<Page
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on the first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
By:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
