BANK OF AMERICA
CORPORATION
UNDERWRITING
AGREEMENT
$2,250,000,000, FLOATING RATE SENIOR NOTES, DUE AUGUST
2010
New
York, New York
August 10, 2007
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"), the principal amount of
one or more series 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 Trust Company, N.A., as successor trustee
(the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of September 18, 1998, the Second Supplemental
Indenture dated as of May 7, 2001, the Third Supplemental Indenture
dated as of July 28, 2004, and the Fourth Supplemental Indenture
dated April 28, 2006 (as so supplemented, the "Indenture").
The Securities are described more fully in the Prospectus referred
to below. If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives", as used herein,
each shall be deemed to refer to such firm or firms.
1. Representations
and Warranties.
(a) The Company
represents and warrants to, and agrees with, each Underwriter
that:
(i) The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No.
333-133852), which contains a base prospectus (the "Base
Prospectus"), to be used in connection with the public offering and
sale of the Securities. Such registration statement, as
amended, 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 of 1933, as
amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act") or the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Exchange Act"), at each time of
effectiveness, is called the "Registration Statement." The
term "Prospectus" shall mean the final prospectus supplement
relating to the Securities, together with the Base Prospectus, that
is first filed
pursuant to Rule 424(b) after the date and time that this
Agreement is executed and delivered by the parties hereto (the
"Execution Time"). Any reference herein to the Registration
Statement 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 the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Prospectus under the Exchange Act, and incorporated by reference in
such Prospectus; 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, the Prospectus, or any amendments or
supplements to either of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
(ii) The term "Disclosure
Package," as to each series of Securities, shall mean (A) the Base
Prospectus; (B) the applicable issuer free writing prospectuses as
defined in Rule 433 of the Securities Act (each, an "Issuer Free
Writing Prospectus"), if any, identified in Schedule III hereto;
and (C) any other free writing prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of that
Disclosure Package. As of 2:45 p.m. (Eastern time) on the
date of this Agreement (the "Initial Sale Time"), each Disclosure
Package did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from a Disclosure Package
based upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter 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 7(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 Date (as hereinafter defined) and, with respect to the
Registration Statement in (A) and (B) below, as of the Initial Sale
Time, (A) the Registration Statement is effective and the
Registration Statement, as amended as of any such time, the
Prospectus, as amended or supplemented as of any such time, and the
Indenture complied, complies or will comply in all material
respects with the applicable provisions of the Securities Act, the
Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (the "Trust Indenture
Act"), and the Exchange 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, 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, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (I) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under
the
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Trust Indenture Act of the Trustee or (II) the Underwriter
Information. The documents which are incorporated by
reference in the Registration Statement, each Disclosure Package or
the Prospectus or from which information is so incorporated by
reference, when they were filed with the Commission, complied in
all material respects with the requirements under 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 Prospectus, and the Company is without
knowledge that any proceedings have been instituted for either
purpose.
(iv) (A) At the earliest time
after the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the
Securities Act) and (B) as of the date of the execution and
delivery of this Agreement (with such date being used as a
determination date for purposes of this clause (B)), the Company
neither was nor is an Ineligible Issuer (as defined in Rule 405 of
the Securities Act).
(v) No Issuer Free
Writing Prospectus (including any Final Term Sheet), as of its 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 Representatives 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 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 below),
there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration
Statement or the Prospectus, the Company has promptly notified or
will promptly notify the Representatives 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.
(vi) The Company has not
distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters' distribution
of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement, the Prospectus, or any Issuer Free Writing Prospectus
reviewed and consented to by the Underwriters and included in
Schedule III hereto.
(vii) (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 or any person acting on
its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer relating to
the Securities in reliance on the
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exemption of Rule 163 under the Securities Act,
and (D) at the Execution Time (with such time being used
as the determination time for purposes of this clause (D)), the
Company was and is a "well‑known seasoned issuer" as defined
in Rule 405 under the Securities Act. The Registration
Statement is an "automatic shelf registration statement," as
defined in Rule 405 under the Securities Act, the Company has
not 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.
(b) Each Underwriter,
severally and not jointly, represents and agrees that:
(i) it has not and
will not, directly or indirectly, offer, sell or deliver any of the
Securities or distribute the Prospectus or any other offering
materials (including any Issuer Free Writing Prospectus or other
free writing prospectuses) relating to the Securities in or from
any jurisdiction except under circumstances that will, to the best
of its knowledge and belief, result in compliance with any
applicable laws and regulations thereof and that, to the best of
its knowledge and belief, will not impose any obligations on the
Company except as set forth herein; and
(ii) it will comply in
all material respects with the selling restrictions set forth in
the Prospectus under the caption "Underwriting-Selling
Restrictions."
2. Purchase and
Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the principal
amount of the Securities set forth opposite such Underwriter's name
in Schedule II hereto.
3. Delivery and
Payment. Delivery of and payment for the Securities shall be
made on the date and at the time specified in Schedule I hereto,
which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereto
(such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof in the manner set forth in Schedule I hereto. Unless
otherwise agreed, certificates for the Securities shall be in
book-entry form, 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) During the period
beginning at 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), including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (the "Prospectus Delivery Period"), the Company will not
file any amendment to the Registration Statement or supplement to
the Base Prospectus or a
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Disclosure Package (including the 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 Prospectus to be filed with
the Commission pursuant to Rule 424 via EDGAR. The Company
will advise the Representatives promptly (i) when the Prospectus
shall have been filed with the Commission pursuant to Rule 424,
(ii) when any amendment to the Registration Statement or the
Disclosure Package relating to a series of 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 Prospectus or a Disclosure Package or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose, and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time
during the Prospectus Delivery Period, 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 each Disclosure Package or the 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 or then prevailing, as the case may be, not
misleading, or if it shall be necessary to amend or supplement each
Disclosure Package or the Prospectus to comply with the Securities
Act or the Exchange Act, 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 (including, if consented to by the
Underwriters, by means of an Issuer Free Writing Prospectus), and
will give immediate notice, and confirm in writing, to the
Underwriters to cease the solicitation of offers to purchase the
Securities, and furnish to the Underwriters a reasonable number of
copies of such amendment or supplement.
(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 Securities 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
Securities Act, as many copies of the 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.
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(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 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 Securities Act; provided, however, the Company may, at
any time, offer or sell or announce the offering of securities (i)
covered by a registration statement on Form S-8 or (ii) covered by
a registration statement on Form S-3 and (A) pursuant to which the
Company issues securities under one of the Company's medium-term
note programs (including, without limitation, the Company's Series
K Medium-Term Note Program and the Company's InterNotes Program),
(B) pursuant to which the Company issues securities for its
dividend reinvestment plan, or (C) pursuant to which affiliates of
the Company offer securities of the Company in secondary market
transactions.
(g) As to each series of
the Securities, the Company will prepare a final term sheet
containing only a description of such series, in a form approved by
the Representatives and contained in Schedule IV of this Agreement,
and will file each such term sheet pursuant to Rule 433(d) under
the Securities Act as promptly as possible, but in any case not
later than the time required by such rule (each such term sheet, a
"Final Term Sheet").
(h) The Company
represents that it has not made and agrees that, unless it obtains
the prior written consent of the Representatives, it will not make,
any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
"free writing prospectus" (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives
shall be deemed to have been given in respect of the Issuer Free
Writing Prospectuses included in Schedule III hereto. Any
such free writing prospectus consented to by the Representatives is
hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company agrees that (i) it has treated and
will treat as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) it has
complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The
Company consents to the use by any Underwriter of a free writing
prospectus that (A) is not an "issuer free writing prospectus" as
defined in Rule 433, and (B) contains only (I) information
describing the preliminary terms of the Securities or their
offering, (II) information permitted by Rule 134 under the
Securities Act or (III) information that describes the final
terms of the Securities or their offering and that is included in a
Final Term Sheet of the Company contemplated in paragraph (g)
above.
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(i) If immediately
prior to the third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the
Securities remain unsold by the Underwriters, the Company will file
prior to the Renewal Deadline, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement
relating to such Securities, in a form satisfactory to the
Representatives. If the Company is no longer eligible to file
an automatic shelf registration statement, the Company will prior
to the Renewal Deadline, if it has not already done so, file a new
shelf registration statement relating to such Securities, in a form
satisfactory to the Representatives, and will use its best efforts
to cause such registration statement to be declared effective
within 60 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the
public offering and sale of the Securities to continue as
contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or
such new shelf registration statement, as the case may be.
(j) If at any time
when any of the Securities remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to
Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will
(i) promptly notify the Representatives, (ii) promptly
file a new registration statement or post-effective amendment on
the proper form relating to such Securities, in a form satisfactory
to the Representatives, (iii) use its best efforts to cause
such registration statement or post-effective amendment to be
declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take
all other action necessary or appropriate to permit the public
offering and sale of the Securities to continue as contemplated in
the registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(k) The Company agrees to
pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) of the Securities
Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the Securities
Act.
5. Conditions to
the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of
the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in any
certificates furnished pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) For the period from
and after effectiveness of this Agreement and prior to the Closing
Date:
(i) no stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and
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the Company shall not have received from the Commission any
notice pursuant to Rule 401(g)(2) of the Securities Act objecting
to use of the automatic shelf registration statement form (unless
the Securities are duly registered in the manner contemplated by
Rule 401(g)(2) to the satisfaction of the Representatives prior to
the Closing Date);
(ii) the Company shall
have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the
manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective
amendment to the Registration Statement containing the information
required by such Rule 430B, and such post-effective amendment shall
have become effective (if not automatically effective under the
rules of the Commission);
(iii) each Final Term Sheet,
and any other material required to be filed by the Company pursuant
to Rule 433(d) under the Securities Act, shall have been filed with
the Commission within the applicable time periods prescribed for
such filings under such Rule or, to the extent applicable, under
Rule 164(b); and
(iv) the NASD shall have raised
no objection to the fairness and reasonableness of the underwriting
terms and arrangements.
(b) The Company shall
have furnished to the Representatives the opinion of Helms Mulliss
& Wicker, PLLC, counsel for the Company, dated the Closing
Date, to the effect of paragraphs (i) and (v) through (xi) below,
and the opinion of the General Counsel of the Company (or such
other attorney, reasonably acceptable to counsel to the
Underwriters, who exercises general supervision or review in
connection with a particular securities law matter for the
Company), dated the Closing Date, to the effect of paragraphs (ii)
through (iv) below:
(i) the Company is
a duly organized and validly existing corporation in good standing
under the laws of the State of Delaware, has the corporate power
and authority to own its properties and conduct its business as
described in each Disclosure Package and the 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 each
Disclosure Package and the 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;
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(iv) such counsel is without
knowledge that there is (A) there is any pending or threatened
action, suit or proceeding before or by any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries, of a character required to be disclosed
in the Registration Statement, each Disclosure Package, or the
Prospectus which is omitted or not adequately disclosed therein, or
(B) any franchise, contract or other document of a character
required to be described in the Registration Statement, each
Disclosure Package, or the Prospectus, or to be filed as an exhibit
to the Registration Statement, that is not so described or filed as
required;
(v) the Indenture and the
Securities conform in all material respects to the descriptions
thereof contained in the applicable Disclosure Package and the
Prospectus;
(vi) the Indenture has been
duly authorized, executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act, and constitutes a
legal, valid, and binding instrument of the Company enforceable
against the Company in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
further subject to 12 U.S.C. §1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public
policy; and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and
to equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy;
(vii) the Registration Statement has
become effective under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, has been
issued, and such counsel is without knowledge that any proceeding
for that purpose has been instituted or threatened, or that the
Company has received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to the use of the
automatic shelf registration statement form; and the Registration
Statement, each Disclosure Package, and the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act;
(viii) this Agreement has been duly
authorized, executed and delivered by the Company and assuming due
authorization, execution, and delivery by you, constitutes a legal,
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors
now or
9
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and contribution
provisions contained in this Agre
