BANK OF AMERICA CORPORATION
UNDERWRITING
AGREEMENT
CAD 500,000,000 5.15% Subordinated Notes, due May 2017
New
York, New York
May 23, 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 subordinated debt securities (the
"Securities"), as identified in Schedule I hereto. 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 August 28, 1998 and the
Second Supplemental Indenture dated as of January 25, 2007 (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." Any
preliminary prospectus supplement to the Base Prospectus that
describes the 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
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"). Any
preliminary Canadian offering memorandum that describes the
Securities and the offering thereof, which includes the preliminary
prospectus and is used in Canada prior to the filing of the
Prospectus, is called the "Preliminary Canadian Offering
Memorandum." The final Canadian offering memorandum that
describes the Securities and the offering thereof, which includes
the Prospectus, is called the "Canadian Offering Memorandum."
(ii) The term "Disclosure
Package," as to each series of Securities, shall mean (A) the
preliminary prospectus, as it may be amended or supplemented, (B)
the Base Prospectus; (C) 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; (D) the Preliminary Canadian Offering Memorandum; and
(E) 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 5:00 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 and the Canadian Offering Memorandum, as amended or
supplemented as of any
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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
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,
the preliminary prospectus 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 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 Company is
without knowledge that any proceedings have been instituted for
either purpose.
(iv) No Canadian securities
regulatory authority has issued any order preventing or suspending
the use of the Preliminary Canadian Offering Memorandum or the
Canadian Offering Memorandum, and the Company is without knowledge
that any proceeding has been initiated for such purposes.
(v) (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).
(vi) 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 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, 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 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, the preliminary prospectus
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.
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(vii) 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
preliminary prospectus, the Prospectus, the Preliminary Canadian
Offering Memorandum, the Canadian Offering Memorandum, or any
Issuer Free Writing Prospectus reviewed and consented to by the
Underwriters and included in Schedule III hereto.
(viii) (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 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 preliminary prospectus, the Prospectus
or any other offering materials (including any Issuer Free Writing
Prospectus, other free writing prospectuses, the Preliminary
Canadian Offering Memorandum, or the Canadian Offering Memorandum)
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 Preliminary Canadian Offering Memorandum, the Canadian Offering
Memorandum, the preliminary prospectus and the Prospectus under the
captions "Canadian Selling Restrictions" and "Underwriting-Selling
Restrictions," as applicable.
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
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(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 shall
be deposited with CDS Clearing and Depository Services, Inc., in
the name of CDS & Co.
4.
Agreements. The Company agrees with the several Underwriters
that:
(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), 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 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 preliminary prospectus and 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,
(v) of the issuance by any Canadian securities regulatory authority
of any order suspending the use of the Canadian Offering Memorandum
or any trading in the Securities, and (vi) 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
Representatives, by means of an Issuer Free Writing Prospectus),
and will give immediate notice,
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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 preliminary prospectus, the
Prospectus, or the Canadian Offering Memorandum 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 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, (C) pursuant to which the Company
and affiliated trusts issue trust preferred securities and related
securities in underwritten offerings in which the lead manager is
Banc of America Securities LLC (under the Registration Statement
No. 333-133852), or (D) 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").
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(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.
(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.
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(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 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) no order suspending
the use of the Canadian Offering Memorandum or trading of the
Securities in Canada shall be in effect, and no proceedings for
such purpose shall have been instituted or threatened by any
Canadian securities regulatory authority;
(iii) the Company shall have
filed the preliminary prospectus and the Prospectus with the
Commission (including the information required by Rule 430B under
the Securities Act) in the manner and within the time period
required by Rule 424(b) under the Securities Act; or the Company
shall have filed a post-effective amendment to the Registration
Statement containing the information required by such Rule 430B,
and such post-effective amendment shall have become effective (if
not automatically effective under the rules of the Commission);
(iv) 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
(v) 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
8
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;
(iv) such counsel is without
knowledge that (A) there is any pending or threatened action, suit
or proceeding before or by any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be disclosed in the
Registration Statement, 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, 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,
9
valid and binding obligations of the Company entitled to the
benefits of such 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
