Exhibit 1.3
850,000 Preferred
HITS
BAC CAPITAL TRUST XIV
(a Delaware Trust)
5.63% Fixed to Floating Rate
Preferred Hybrid Income Term Securities
(Liquidation Amount of $1,000 per
Security)
UNDERWRITING AGREEMENT
February 12, 2007
Banc of America Securities
LLC
as the Representative of the several
Underwriters
c/o Banc of America Securities LLC
9 West 57
th
Street
New York, NY 10019
Ladies and Gentlemen:
BAC Capital Trust XIV (the
“Trust”), a statutory trust organized under the
Statutory Trust Act of the State of Delaware (the “Delaware
Act”), and Bank of America Corporation, a Delaware
corporation (the “Company” and, together with the
Trust, the “Offerors”), confirm their agreement (the
“Agreement”) with Banc of America Securities LLC and
each of the several Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term also
shall include any underwriter substituted as hereinafter provided
in Section 8 hereof), for whom Banc of America Securities LLC
is acting as the Representative (in such capacity, the
“Representative”), with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and
not jointly, of the respective numbers of 5.63% Fixed to Floating
Rate Preferred Hybrid Income Term Securities (liquidation amount of
$1,000 per security) of the Trust (the “Preferred
HITS”) set forth in Schedule A attached hereto. The Trust is
authorized to issue three classes of Hybrid Income Term Securities
(the “HITS”): the Preferred HITS, the Treasury HITS and
the Corporate HITS. The HITS will be guaranteed on a junior
subordinated basis by the Company, to the extent set forth in the
Prospectus (as defined herein), with respect to distributions and
payments upon liquidation, redemption and otherwise (the
“HITS Guarantee”) pursuant to the Guarantee Agreement,
to be dated as of February 16, 2007 (the “Guarantee
Agreement”), by and between the Company and The Bank of New
York, as trustee (the “Guarantee Trustee”), and will be
entitled to the benefits of certain back-up undertakings described
in the Prospectus with respect to the Company’s agreement
pursuant to the Fourteenth Supplemental Indenture (as defined
herein) to pay all reasonable expenses relating to administration
of the Trust (other than payment obligations with respect to the
HITS). The Company will enter into a Replacement Capital Covenant
to be dated as of the Closing Date in favor of and for the benefit
of each Covered Debtholder (as defined therein) which may be
amended or supplemented from time to time in accordance with the
provisions thereof (the “Replacement Capital
Covenant”).
The Offerors understand that the
Underwriters propose to make an offering of the Preferred HITS as
soon as the Representative deems advisable after this Agreement has
been executed and delivered and the Declaration (as defined
herein), the Indenture (as defined herein) and the HITS Guarantee
Agreement have been qualified under the Trust Indenture Act of
1939, as amended, and the rules and regulations promulgated
thereunder (the “Trust Indenture Act”). The entire
proceeds to the Trust from the sale of the Preferred HITS will be
combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the “Common
Securities”) and will be used by the Trust to purchase
$850,100,000 in aggregate principal amount of the Remarketable
Fixed Rate Junior Subordinated Notes due 2043 (the “Junior
Subordinated Notes”) issued by the Company pursuant to the
Indenture (as defined herein). The Common Securities will be
guaranteed on a junior subordinated basis by the Company, to the
extent set forth in the Prospectus, with respect to distributions
and payments upon liquidation, redemption, and otherwise (the
“Common Securities Guarantee” and, together with the
HITS Guarantee, the “Guarantees”) pursuant to the
Common Securities Guarantee Agreement, to be dated as of
February 16, 2007 (the “Common Securities Guarantee
Agreement” and, together with the HITS Guarantee Agreement,
the “Guarantee Agreements”).
The Preferred HITS and the Common
Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, dated as of February 16,
2007 (the “Declaration”) among the Company, as Sponsor,
James T. Houghton, Ann J. Travis, and Richard L. Nichols, Jr., as
trustees (the “Regular Trustees”), The Bank of New York
(Delaware), a Delaware banking corporation, as Delaware trustee
(the “Delaware Trustee”), and The Bank of New York, a
New York banking corporation, as property trustee (the
“Property Trustee” and, together with the Delaware
Trustee and Regular Trustees, the “Trustees”), and the
holders from time to time of undivided beneficial interests in the
assets of the Trust. The Junior Subordinated Notes will be issued
pursuant to a restated indenture, dated as of November 1, 2001
(the “Base Indenture”), by and between the Company and
The Bank of New York Trust Company, N.A. as successor trustee to
The Bank of New York, as trustee (the “Debt Trustee”),
as supplemented by a fourteenth supplement to the Base Indenture,
to be dated as of February 16, 2007 (the “Fourteenth
Supplemental Indenture,” and together with the Base
Indenture, the “Indenture”), by and between the Company
and the Debt Trustee. The Trust will contemporaneously enter into
(i) a Stock Purchase Contract Agreement (the “Stock
Purchase Contract Agreement”) with the Company, pursuant to
which the Trust will agree to purchase 8,501 Stock Purchase
Contracts (each a “Stock Purchase Contract”), each
having a stated amount of $100,000 and obligating the Trust to
purchase from the Company, and the Company to sell to the Trust,
subject to the terms thereof, one share of the Company’s
Adjustable Rate Non-Cumulative Perpetual Preferred Stock, Series G,
$100,000 liquidation preference per share (the “Preferred
Stock”), on the Stock Purchase Date provided for in (and as
defined in) the Stock Purchase Contract Agreement, and (ii) a
Collateral Agreement (the “Collateral Agreement”) with
The Bank of New York Trust Company, N.A., as collateral agent (the
“Collateral Agent’), under which the Trust will
initially pledge the Junior Subordinated Notes to secure its
obligation to purchase the Preferred Stock under the Stock Purchase
Contracts. The Treasury HITS, the Corporate HITS, the Junior
Subordinated Notes, the Guarantees, the Stock Purchase Contracts
and the Preferred Stock are collectively referred to herein as the
“Related Securities”.
Capitalized terms used herein and
not otherwise defined but that are defined in the Prospectus shall
have the meanings specified in the Prospectus.
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SECTION 1. REPRESENTATIONS AND
WARRANTIES. (a) The Offerors jointly and severally represent
and warrant to each Underwriter as of the date hereof and as of the
Closing Time (as hereinafter defined) as follows:
(i) The Offerors propose to file
with the Securities and Exchange Commission (the
“Commission”) pursuant to Rule 424(b) under the
Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder (collectively, the “Securities
Act”), a supplement to the form of prospectus included in the
registration statement (referred to below) relating to the
Preferred HITS and the Related Securities and the plan of
distribution thereof and have previously advised you of all further
information (financial and other) with respect to the Offerors to
be set forth therein. Such registration statement (File
No. 333-133852), including the financial statements, exhibits
and schedules thereto and including any required information deemed
to be a part thereof pursuant to Rule 430B under the Securities Act
or the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (collectively, the
“Exchange Act”), at each time of effectivness, is
called the “Registration Statement.” Any preliminary
prospectus supplement to the base prospectus included in the
Registration Statement (the “Base Prospectus”) that
describes the Preferred HITS and the Related Securities and the
offering thereof and is used prior to filing of the Prospectus is
called, together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall mean the
final prospectus supplement relating to the Preferred HITS and the
Related Securities, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and time that
this Agreement is executed and delivered by the parties hereto (the
“Execution Time”). Any reference herein to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act; any reference to any amendment or
supplement to any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date
of such preliminary prospectus or Prospectus, as the case may be,
under the Exchange Act, and incorporated by reference in such
preliminary prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. All
references in this Agreement to the Registration Statement, a
preliminary prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“EDGAR”)
(except as may be permitted by Regulation S-T under the Securities
Act).
(ii) The term “Disclosure
Package” shall mean (i) the preliminary prospectus, as
it may be amended or supplemented, (ii) the issuer free
writing prospectuses as defined in Rule 433 under the Securities
Act (each, an “Issuer Free Writing Prospectus”), if
any, identified in Schedule C hereto and (iii) any other free
writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package. As of 8:00 P.M. (Eastern time) on the date of this
Agreement (the “Initial Sale Time”), the Disclosure
Package did not contain any untrue statement of a material fact or
omit to
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state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements contained in or
omissions from the preliminary prospectus based upon and in
conformity with written information furnished to the Offerors by or
on behalf of any Underwriter through the Representative
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 6(b) hereof (the “Underwriter
Information”).
(iii) As of the date hereof, when
the Prospectus is first filed with the Commission pursuant to Rule
424(b) under the Securities Act, when any supplement or amendment
to the Prospectus is filed with the Commission, at the Closing
Time, and, with respect to the Registration Statement in
(A) and (B) below, as of the Initial Sale Time,
(A) the Registration Statement, as amended as of any such
time, and the Prospectus, as amended or supplemented as of any such
time, and the Indenture complied, complies or will comply in all
material respects with the applicable provisions of the Securities
Act, the Exchange Act and the Trust Indenture Act, (B) the
Registration Statement, as amended as of any such time, did not,
does not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (C) the Prospectus, as amended or supplemented
as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Offerors make no
representations or warranties as to (I) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification of the Trustee (Form T-1) under the
Trust Indenture Act of the Debt Trustee, the Property Trustee or
the Guarantee Trustee or (II) the Underwriter Information. The
documents which are incorporated or deemed incorporated by
reference in the Disclosure Package, the Registration Statement,
the preliminary prospectus or the Prospectus, when they were filed
with the Commission, complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and did not, when such documents were so filed, contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The Commission has not issued any
stop order suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of the
preliminary prospectus or the Prospectus and the Offerors are
without knowledge that any proceedings have been instituted for
either purpose.
(iv) Since the respective dates as
of which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Trust
or the Company and its subsidiaries, considered as one enterprise,
whether or not arising from transactions in the ordinary course of
business.
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(v) To the best knowledge of the
Offerors, PricewaterhouseCoopers LLP, the accountants who certified
the financial statements and supporting schedules included in or
incorporated by reference into the Registration Statement, is an
independent registered public accounting firm as required by the
Securities Act.
(vi) The Trust has been duly created
and is validly existing and in good standing as a statutory trust
under the Delaware Act with the power and authority to own property
and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and to enter
into and perform its obligations under this Agreement, the HITS,
the Common Securities, the Declaration and the other transaction
documents to which the Trust is a party (such documents consist of
the Stock Purchase Contract Agreement and the Collateral Agreement
and, collectively, are referred to as the “Other Trust
Transaction Agreements”); the Trust is not a party to or
otherwise bound by any agreement other than those described in the
Disclosure Package and the Prospectus; the Trust is and will be
classified for U.S. federal income tax purposes as a grantor trust
and not as an association taxable as a corporation; and the Trust
is not and will not be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting
principles.
(vii) This Agreement has been duly
authorized, executed and delivered by each of the
Offerors.
(viii) The Declaration has been duly
authorized by the Company, as sponsor, and when validly executed
and delivered by the Company and the Regular Trustees, and assuming
due authorization, execution and delivery of the Declaration by the
Property Trustee and the Delaware Trustee, the Declaration will be
a valid and binding obligation of the Company, the Trust and the
Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and further
subject to 12 U.S.C. 1818(b)(6)(D) (or any successor statute) and
any bank regulatory powers now or hereafter in effect and to the
application of principles of public policy (collectively, the
“Permitted Exceptions”) and will conform in all
material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus; and the Declaration has been
duly qualified under the Trust Indenture Act.
(ix) Each of the Guarantee
Agreements has been duly authorized by the Company and, when
validly executed and delivered by the Company, assuming due
authorization, execution and delivery of the HITS Guarantee by the
Trustee thereof, will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited
by the Permitted Exceptions, and each of the Guarantees and the
Guarantee Agreements will conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the
Prospectus; and the HITS Guarantee Agreement has been duly
qualified under the Trust Indenture Act.
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(x) The Common Securities have been
duly authorized by the Trust pursuant to the Declaration and, when
issued and delivered by the Trust to the Company against payment
therefor as described in the Registration Statement, the Disclosure
Package and the Prospectus, will be validly issued and, subject to
the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Declaration and will conform in all
material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus; and the issuance of the
Common Securities is not subject to preemptive or other similar
rights.
(xi) The Preferred HITS have been
duly authorized by the Trust pursuant to the Declaration and, when
issued and delivered pursuant to this Agreement and the Declaration
against payment of the consideration therefor set forth in Schedule
B hereto, will be validly issued and, subject to the terms of the
Declaration, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, will be entitled to the
benefits of the Declaration and will conform in all material
respects to the descriptions thereof contained in the Disclosure
Package and the Prospectus; the issuance of the Preferred HITS is
not subject to preemptive or other similar rights; and, subject to
the terms of the Declaration, holders of Preferred HITS will be
entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations
for profit.
(xii) The Treasury HITS and
Corporate HITS have been duly authorized by the Trust pursuant to
the Declaration and, if issued and delivered pursuant to the
Declaration and this Agreement against payment therefor as
described in the Prospectus, will be validly issued and, subject to
the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Declaration and will conform in all
material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus; the issuance of the Treasury
HITS and the Corporate HITS will not be subject to preemptive or
other similar rights; and, subject to the terms of the Declaration,
holders of Treasury HITS and Corporate HITS will be entitled to the
same limitation of personal liability under Delaware law as
extended to stockholders of private corporations for
profit.
(xiii) Each of the Regular Trustees
of the Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Declaration.
(xiv) None of the Offerors is, and
upon the issuance and sale of the Preferred HITS as herein
contemplated and the application of the net proceeds therefrom as
described in the Disclosure Package and the Prospectus, none will
be, an “investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended and the rules and regulations promulgated thereunder
(collectively, the “1940 Act”).
(xv) The provisions of the
Collateral Agreement are effective to create in favor of the
Collateral Agent for the benefit of the Company a valid security
interest under the Uniform Commercial Code as in effect in the
State of New York (the “UCC”) in all “security
entitlements” (as defined in Section 8-102(a)(17) of the
UCC and the Federal
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Book-Entry Regulations) now or
hereafter carried in or to the Junior Subordinated Notes or
treasury securities included in the Pledge Account (the
“Pledged Securities Entitlements”); and upon possession
by the Collateral Agent of the Pledged Securities Entitlements or
upon the filing of a UCC Financing Statement in the proper filing
office, as applicable, the Collateral Agent will have a perfected
security interest, for the benefit of the Company, in the Pledged
Security Entitlements. “Federal Book-Entry Regulations”
means (a) the federal regulations contained in Subpart B
(“Treasury/Reserve Automated Debt Entry System
(TRADES)” governing Book-Entry Securities (as defined
therein) consisting of U.S. Treasury bonds, notes and bills) and
Section 357.41 through Section 357.44 (including related
defined terms in 31 C.F.R. Section 357.2); and (b) to the
extent substantially identical to the federal regulations referred
to in clause (a) above (as in effect from time to time), the
federal regulations governing other Book-Entry
Securities.
(xvi) No authorization, approval,
consent or order of any court or governmental authority or agency
is necessary in connection with the execution, delivery or
performance by the Trust of the Trust Transaction Agreements, or
the offering, issuance and sale of the Preferred HITS, the HITS
Guarantee and the Junior Subordinated Notes, the issuance of the
Common Securities and the Common Securities Guarantee, the exchange
of the Preferred HITS and the related issuances of the Treasury
HITS and Corporate HITS in accordance with the terms of the
Declaration, the purchase by the Trust of shares of Preferred Stock
pursuant to the Stock Purchase Contract Agreement or the execution,
delivery or performance by the Trust of any of the Other Trust
Transaction Agreements, except such as may be required under the
Securities Act or state securities or insurance laws, and the
qualification of the Declaration, the HITS Guarantee Agreement and
the Indenture under the Trust Indenture Act; provided however that
the Offerors do not make any representation regarding any approval
that may be required by the Federal Reserve regarding the treatment
of the HITS for regulatory capital purposes, the issuance of
securities and application of proceeds pursuant to the alternative
payment mechanism or the Replacement Capital Covenant described in
the Prospectus or any repurchase or redemption of the HITS or the
Related Securities.
(xvii)(A) At the earliest time after
the Offerors or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) and (B) as of the date of the execution and
delivery of this Agreement (with such date being used as the
determination date for purposes of this clause (B)), neither
Offeror was or is an Ineligible Issuer (as defined in Rule 405
under the Securities Act).
(xviii) No Issuer Free Writing
Prospectus (including any Final Term Sheet), as of its issue date
and at all subsequent times through the completion of the offering
contemplated hereby or until any earlier date that the Company
notified or notifies the Representative as described in the next
sentence, included, includes or will include any information that
conflicted, conflicts, or will conflict with the information
contained in the Registration Statement, including any document
incorporated by reference therein, the preliminary prospectus or
the Prospectus, that had not or has not been superseded or
modified. If at any time following issuance of an Issuer Free
Writing Prospectus and prior to the end of the Prospectus Delivery
Period (as defined herein), there occurred or
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occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration
Statement or the Prospectus, the Company has promptly notified or
will promptly notify the Representative and has promptly amended or
supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from an Issuer Free Writing Prospectus
based upon and in conformity with Underwriter
Information.
(xix) The Offerors have not
distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters’
distribution of the Preferred HITS, any offering material in
connection with the offering and sale of the Preferred HITS and the
Related Securities other than the Registration Statement, the
preliminary prospectus, the Prospectus, and any Issuer Free Writing
Prospectus reviewed and consented to by the Representative and
included in Schedule C hereto.
(b) The Company represents and
warrants to each Underwriter as of the date hereof and as of the
Closing Time as follows:
(i) The Company meets the
requirements for use of Form S-3 under the Securities Act and has
filed with the Commission the Registration Statement, which has
been declared effective. The Registration Statement meets the
requirements of Rule 415(a)(1) under the Securities Act and
complies in all material respects with said rule.
(ii)(A) At the time of filing the
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (C) at the time the Company, the Trust or any
person acting on their respective behalf (within the meaning, for
this clause only, of Rule 163(c) of the Securities Act) made
any offer relating to the Preferred HITS and the Related Securities
in reliance on the exemption under Rule 163 of the Securities
Act, and (D) at the Execution Time (with such time being
used as the determination time for purposes of this clause (D)),
the Company was and is a “well-known seasoned issuer”
as defined in Rule 405 under the Securities Act. The
Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405 under the Securities
Act, neither the Company nor the Trust has received from the
Commission any notice pursuant to Rule 401(g)(2) under the
Securities Act objecting to use of the automatic shelf registration
statement form and the Company has not otherwise ceased to be
eligible to use the automatic shelf registration statement
form.
(iii) The Company has complied and
will comply with all the provisions of Florida H.B. 1771, codified
as Section 517.075 of the Florida Statutes, 1987, as
amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba; provided , however ,
that in the event that such Section 517.075 shall be
repealed, or amended such that issuers shall no longer be required
to disclose in prospectuses information regarding business
activities in Cuba or that a broker, dealer or agent shall no
longer be required to obtain a statement from issuers regarding
such compliance, then this representation and agreement shall be of
no further force and effect.
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(iv) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with corporate
power (A) to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the
Prospectus, (B) to enter into and perform its obligations
under this Agreement, the Declaration, as Sponsor, the Indenture,
each of the Guarantee Agreements, the Remarketing Agreement (as
defined herein) and each of the Other Company Transaction
Agreements (as defined herein), (C) to purchase, own and hold
the Common Securities issued by the Trust and (D) to issue and
deliver on the Stock Purchase Date certificates representing the
Preferred Stock to be then issued; the Company is duly registered
as a bank holding company under the Bank Holding Company Act of
1956, as amended; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the character or location of its properties
or the nature or the conduct of its business requires such
qualification, except for any failures to be so qualified or in
good standing which, taken as a whole, are not material to the
Company and its subsidiaries, considered as one
enterprise.
(v) Bank of America, N.A. (the
“Principal Subsidiary Bank”) is a national banking
association formed under the laws of the United States and
authorized thereunder to transact business; all of the issued and
outstanding capital stock of the Principal Subsidiary Bank has been
duly authorized and validly issued, is fully paid and
non-assessable; and the capital stock of the Principal Subsidiary
Bank is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(vi) The Indenture has been duly
authorized by the Company and, when validly executed and delivered
by the Company, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited
by the Permitted Exceptions; the Indenture will conform in all
material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus; and the Indenture has been
duly qualified under the Trust Indenture Act.
(vii) The Junior Subordinated Notes
have been duly authorized by the Company and, when duly executed by
the Company and authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in
the Disclosure Package and the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Permitted Exceptions, and
will be in the form contemplated by, and, subject to the Permitted
Exceptions, entitled to the benefits of, the Indenture and will
conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Prospectus.
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(viii) The shares of Preferred Stock
to be issued by the Company to the Trust under the Stock Purchase
Contracts on the Stock Purchase Date have been duly authorized by
the Company and the Company has reserved for issuance out of its
authorized capital stock the maximum number of shares of Preferred
Stock issuable under the Stock Purchase Contracts; the Preferred
Stock, when issued and delivered against payment therefor as
provided in the Stock Purchase Contract Agreement and as provided
in the Company’s Certificate of Designations relating to the
Preferred Stock (the “Certificate of Designations”)
will be duly and validly issued and fully paid and non-assessable
and will conform in all material respects to the descriptions
thereof contained in the Disclosure Package and the
Prospectus.
(ix) Each of the Guarantee
Agreements, the Stock Purchase Contract Agreement, the Collateral
Agreement, the Replacement Capital Covenant, and that certain Note
Purchase Agreement entered into between the Company and the Trust
on the date hereof (the “Note Purchase Agreement”)
(collectively, the “Other Company Transaction
Agreements” and, together with this Agreement, the
Declaration, the Indenture and the Junior Subordinated Notes, the
“Company Transaction Agreements”) has been duly
authorized by the Company and, when validly executed and delivered
by the Company, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited
by the Permitted Exceptions; the Other Company Transaction
Agreements will conform in all materials respects to the
descriptions thereof contained in the Disclosure Package and the
Prospectus.
(x) The Company’s obligations
under the Guarantee Agreements are subordinate and junior in right
of payment to all liabilities of the Company and are pari passu
with the most senior preferred stock issued by the
Company.
(xi) The Junior Subordinated Notes
are subordinated and junior in right of payment to all
“Senior Obligations” (as defined in the Indenture) of
the Company.
(xii) Each holder of securities of
the Company having rights to the registration of such securities
under the Registration Statement has waived such rights or such
rights have expired by reason of lapse of time following
notification of the Company’s intention to file the
Registration Statement.
(xiii) No authorization, approval,
consent or order of any court or governmental authority or agency
is necessary in connection with the execution, delivery or
performance by the Company of any of the Company Transaction
Agreements or the Remarketing Agreement or the issuance of the
Preferred Stock in accordance with the Stock Purchase Contract
Agreement, except such as may be required under the Securities Act
or state securities or insurance laws and the qualification of the
HITS Guarantee Agreement under the Trust Indenture Act; provided
however that the Company does not make any representation regarding
any approval that may be required by the Federal Reserve regarding
the treatment of the HITS for regulatory capital purposes, the
issuance of securities and application of proceeds pursuant to the
alternative payment mechanism and the Replacement Capital Covenant
described in the Prospectus or any repurchase or redemption of the
HITS or the Related Securities.
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(xiv) The Remarketing Agreement to
be entered into between the Company and the agent named therein
(the “Remarketing Agreement”) has been duly authorized
by the Company and, when validly executed and delivered by the
Company, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited
by the Permitted Exceptions; the Remarketing Agreement will conform
in all material respects to the descriptions thereof contained in
the Disclosure Package and the Prospectus.
(xv) The execution, delivery and
performance of the Company Transaction Agreements and the
consummation of the transactions contemplated therein and
compliance by the Company with its obligations thereunder will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the
Principal Subsidiary Bank pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or the Principal Subsidiary Bank is a party or by which
either of them may be bound, or to which any of the property or
assets of the Company or the Principal Subsidiary Bank is subject
(except for conflicts, breaches and defaults which would not,
individually or in the aggregate, be materially adverse to the
Company and its subsidiaries taken as a whole or materially adverse
to the transactions contemplated by this Agreement), nor will such
action result in any violation of the provisions of the amended and
restated certificate of incorporation or by-laws of the Company, or
any applicable law, administrative regulation or administrative or
court decree.
(c) Each certificate signed by any
officer of the Company and delivered to the Underwriters or counsel
for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby.
(d) The Trust represents and
warrants to each Underwriter as of the date hereof and as of the
Closing Time as follows:
(i) Since the respective dates as of
which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Trust, whether or not arising from transactions in the ordinary
course of business, and (B) there have been no transactions
entered into by the Trust, other than in the ordinary course of
business, which are material to the Trust.
(ii) Except as disclosed in the
Disclosure Package and the Prospectus, there is no action, suit or
proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to
the best knowledge of the Trust, threatened, against or affecting
the Trust that is required to be disclosed in the
Disclosure
11
Package and the Prospectus, other
than actions, suits or proceedings which are not reasonably
expected, individually or in the aggregate, to have a material
adverse effect on the condition (financial or other), earnings,
business or properties of the Trust, whether or not arising from
transactions in the ordinary course of business; and there are no
transactions, contracts or documents of the Trust that are required
to be filed as exhibits to the Registration Statement by the
Securities Act that either have not been so filed or will not have
been filed after the date hereof within the time periods prescribed
by the Securities Act.
(iii) The Trust possesses adequate
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies to conduct
the business now operated by it, and the Trust has not received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding would materially and adversely affect the condition
(financial or other), earnings, business or properties of the
Trust.
(iv) Each of the Other Trust
Transaction Agreements (collectively with this Agreement, the
“Trust Transaction Agreements”) has been duly
authorized, executed and delivered by the Trust and will constitute
a valid and legally binding instrument of the Trust, enforceable
against the Trust in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Permitted
Exceptions, and each of the Other Trust Transaction Agreements will
conform in all material respects to the descriptions thereof in the
Disclosure Package and the Prospectus.
(v) The execution, delivery and
performance of this Agreement, the Other Trust Transaction
Agreements and the Declaration, the issuance and sale of the
Preferred HITS and the Common Securities, and the consummation of
the transactions contemplated herein and therein and compliance by
the Trust with its obligations hereunder and thereunder have been
duly authorized by all necessary action on the part of the Trust
and do not and will not result in any violation of the Declaration
or the Certificate of Trust for the Trust dated as of May 3,
2006 (the “Certificate of Trust”) and do not and will
not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which the Trust is a party or by which it may be
bound or to which any of its properties may be subject or
(B) any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or
court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties.
(e) Each certificate signed by any
Trustee of the Trust and delivered to the Underwriters or counsel
for the Underwriters shall be deemed to be a representation and
warranty by the Trust to each Underwriter as to the matters covered
thereby.
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(f) Each Underwriter, severally and
not jointly, represents and agrees that:
(1) it will comply with all
applicable rules of the National Association of Securities Dealers,
Inc. (the “NASD”); and
(2) it has not and will not,
directly or indirectly, offer, sell or deliver any of the Preferred
HITS or distribute the preliminary prospectus, the Prospectus or
any other offering materials relating to the Preferred HITS
(including any free writing prospectuses) in or from any
jurisdiction except under circumstances that will, to the best of
its knowledge and belief, result in compliance with any applicable
laws and regulations thereof.
SECTION 2. SALE AND DELIVERY TO
UNDERWRITERS; CLOSING.
(a) On the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule B, the number of
Preferred HITS set forth in Schedule A opposite the name of such
Underwriter (except as otherwise provided in Schedule B), plus any
additional number of Preferred HITS that such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 8 hereof.
The purchase price per security to
be paid by the several Underwriters for the Preferred HITS shall be
an amount equal to the initial public offering price. The initial
public offering price per Preferred HITS and the purchase price per
Preferred HITS are set forth in Schedule B. As compensation to the
Underwriters for their commitments hereunder and in view of the
fact that the proceeds of the sale of the Preferred HITS will be
used to purchase the Junior Subordinated Notes of the Company, the
Company hereby agrees to pay at the Closing Time to the
Underwriters, a commission per Preferred HITS determined by
agreement between the Representative and the Company for the
Preferred HITS to be delivered by the Trust hereunder at the
Closing Time. The commission is set forth in Schedule B.
(b) Payment of the
purchase price for, and delivery of certificates for, the Preferred
HITS shall be made at the offices of Morrison & Foerster
LLP, or at such other place as shall be agreed upon by the
Representative, the Company and the Trust, at 9:00 A.M. New York
time on the fourth (4 th
) business day
(unless postponed in accordance with the provisions of
Section 8) after the date hereof, or such other time not later
than ten business days after such date as shall be agreed upon by
the Representative, the Trust and the Company (such time and date
of payment and delivery being herein called the “Closing
Time”). Payment shall be made to the Trust by wire transfer
or certified or official bank check or similar same day funds
payable to the order of the Trust to an account designated by the
Trust, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Preferred HITS
to be purchased by them. Unless otherwise agreed, certificates for
the Preferred HITS shall be in the form set forth in the
Declaration, and such certificates shall be deposited with a
custodian (the “Custodian”) for The Depository Trust
Company (“DTC”) and registered in the name of
Cede & Co., as nominee for DTC.
(c) At the Closing Time, the Company
will pay, or cause to be paid, the commission payable at such time
to the Underwriters under this Section 2 hereof by wire
transfer or certified or official bank check or checks payable to
the Representative in same day funds.
13
SECTION 3. COVENANTS OF THE
OFFERORS. Each of the Offerors jointly and severally covenants with
each Underwriter as follows:
(a) During the period beginning on
the Initial Sale Time and ending on the later of the Closing Date
or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer (except for
delivery requirements imposed because such Underwriter or dealer is
an affiliate of the Company or the Trust), including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (the “Prospectus Delivery Period”), the
Offerors will notify the Representative promptly, and confirm the
notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the filing of any
supplement to the Disclosure Package, the Prospectus or any
document filed pursuant to the Exchange Act which will be
incorporated by reference in the preliminary prospectus or the
Prospectus, or any amendment or supplement thereto, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Disclosure Package or the Prospectus
(other than with respect to a document filed with the Commission
pursuant to the Exchange Act which will be incorporated by
reference in the Registration Statement, the preliminary prospectus
and the Prospectus), (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Disclosure Package or the Prospectus or for
additional information relating thereto (other than such a request
with respect to a document filed with the Commission pursuant to
the Exchange Act which will be incorporated by reference in the
Registration Statement, the preliminary prospectus and the
Prospectus), and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose.
The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible
moment.
(b) Prior to the termination of the
offering of the Preferred HITS, the Offerors (1) will give the
Representative notice of their intention to file or prepare
(i) any amendment to the Registration Statement (including any
post-effective amendment) (other than with respect to a document
filed with the Commission pursuant to the Exchange Act which will
be incorporated by reference in the Registration Statement, the
preliminary prospectus and Prospectus that is not filed to correct
a misstatement, an omission or non-compliance that is the subject
of a notice delivered to the Underwriters pursuant to paragraph
(e) below (a “Periodic Filing”)), or (ii) any
amendment or supplement to the Disclosure Package or the Prospectus
(including any revised prospectus which the Offerors propose for
use by the Underwriters in connection with the offering of the
Preferred HITS which differs from the prospectus on file at the
Commission at the time the Registration Statement became effective,
whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) under the Securities Act) (other than with
respect to a Periodic Filing), will furnish the Representative with
copies of any such amendment, supplement or other document within a
reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment, supplement
or other document or use any such prospectus to which the
Underwriters or counsel for the Underwriters shall reasonably
object and (2) will furnish the Representative with copies of
any document that will be incorporated by reference in the
preliminary prospectus or the Prospectus whether pursuant to the
Securities Act, the Exchange Act or otherwise. Subject to the
foregoing, the Offerors will file the preliminary prospectus and
the Prospectus pursuant to Rule 424(b) under the Securities Act
within the time required by such rule.
14
(c) The Offerors will deliver to the
Representative as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) as the Representative may reasonably
request.
(d) The Offerors will furnish to
each Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the Securities Act,
such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the Securities Act.
(e) If at any time when the
Prospectus is required by the Securities Act to be delivered in
connection with sales of the Preferred HITS, except with respect to
any such delivery requirement imposed upon an affiliate of the
Offerors in connection with any secondary market sales, any event
shall occur as a result of which the Disclosure Package or the
Prospectus as then amended or supplemented will include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of the
Securities Act, the Offerors will, subject to paragraph
(b) above, promptly prepare and file with the Commission such
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance
(including, if consented to by the Representative, by means of an
Issuer Free Writing Prospectus), give immediate notice, and confirm
in writing, to the Underwriters to cease the solicitation of offers
to purchase the Preferred HITS, and furnish to the Underwriters a
reasonable number of copies of such amendment or
supplement.
(f) The Offerors will endeavor, in
cooperation with the Underwriters, to qualify the Preferred HITS
and the Related Securities for offering and sale under the
appl
