500,000 Capital
Securities
BAC CAPITAL TRUST XV
(a Delaware Trust)
Floating Rate Capital
Securities
(Liquidation Amount of $1,000 per Capital Security)
UNDERWRITING AGREEMENT
_______________
May 23, 2007
Banc of America
Securities LLC
as the Representative of the several Underwriters
c/o Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Ladies and
Gentlemen:
BAC Capital Trust XV (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 Floating Rate Capital Securities
(liquidation amount of $1,000 per capital security) of the Trust
(the "Capital Securities") set forth in Schedule A attached
hereto. The Capital Securities will be guaranteed on a
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 "Capital
Securities Guarantee") pursuant to the Capital Securities Guarantee
Agreement, to be dated as of May 31, 2007 (the "Capital Securities
Guarantee Agreement"), by and between the Company and The Bank of
New York Trust Company, N.A. 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 Fifteenth Supplemental
Indenture (as defined herein) to pay all reasonable expenses
relating to administration of the Trust (other than payment
obligations with respect to the Capital Securities). The
Capital Securities and the related Capital Securities Guarantees
are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make an
offering of the Securities 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 Capital Securities 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 Capital Securities 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 $500,100,000 in aggregate
principal amount of Floating Rate Junior Subordinated Notes, due
2056 (the "Junior Subordinated Notes") issued by the Company
pursuant to the Indenture. The Common Securities will be
guaranteed on a 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 Capital Securities
Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement, to be dated as of May 31, 2007 (the "Common
Securities Guarantee Agreement" and, together with the Capital
Securities Guarantee Agreement, the "Guarantee
Agreements").
The Capital Securities and the Common Securities will be issued
pursuant to the Amended and Restated Declaration of Trust of the
Trust, dated as of May 23, 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 Trust
Company, N.A., a national banking association, 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"), 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 fifteenth
supplement to the Base Indenture, to be dated as of May 31, 2007
(the "Fifteenth Supplemental Indenture," and together with the Base
Indenture (the "Indenture"), by and between the Company and the
Debt Trustee.
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 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 on Form S-3
(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 effectiveness, is called the "Registration
Statement." Any preliminary prospectus supplement to the base
prospectus included in the Registration Statement (the "Base
Prospectus") that describes the Securities and the offering thereof
and is used prior
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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") (except as may be permitted by
Regulation S-T under the Securities Act).
(ii) The term "Disclosure
Package" shall mean (A) the preliminary prospectus, as it may be
amended or supplemented, (B) 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 (C) 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 7:00 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 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 Disclosure Package 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, 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
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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.
(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 Capital Securities, the Common Securities and the Declaration;
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) 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
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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 and will conform to
all statements relating thereto contained in the Disclosure Package
and the Prospectus; and the issuance of the Common Securities is
not subject to preemptive or other similar rights.
(viii) This Agreement has been duly
authorized, executed and delivered by each of the Offerors.
(ix) 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 to all
statements relating thereto in the Disclosure Package and the
Prospectus; and the Declaration has been duly qualified under the
Trust Indenture Act.
(x) Each of the Guarantee
Agreements has been duly authorized by the Company and, when
validly executed and delivered by the Company, and, in the case of
the Capital Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Capital Securities
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 to all
statements relating thereto contained in the Disclosure Package and
the Prospectus; and the Capital Securities Guarantee Agreement has
been duly qualified under the Trust Indenture Act.
(xi) The Capital Securities
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 to all
statements relating thereto contained in the Disclosure Package and
the Prospectus; the issuance of the Capital Securities is not
subject to preemptive or other similar rights; and, subject to the
terms of the Declaration, holders of Capital Securities will be
entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations
for profit.
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(xii) 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.
(xiii) None of the Offerors is, and
upon the issuance and sale of the Capital Securities 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").
(xiv) No authorization, approval, consent
or order of any court or governmental authority or agency is
necessary in connection with the issuance and sale of the Common
Securities or the offering of the Capital Securities, the Junior
Subordinated Notes or the Capital Securities Guarantee hereunder,
except such as may be required under the Securities Act or state
securities or insurance laws and the qualification of the
Declaration, the Capital Securities Guarantee Agreement and the
Indenture under the Trust Indenture Act.
(xv) (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).
(xvi) 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 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.
(xvii) The Offerors have not distributed
and will not distribute, prior to the later of the Closing Time and
the completion of the Underwriters' distribution of the Capital
Securities, any offering material in connection with the offering
and sale of the Securities other than the Registration Statement,
the preliminary prospectus, the Prospectus, or any
6
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 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, 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.
(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 and each
of the Guarantee Agreements and (C) to purchase, own and hold the
Common Securities issued by the Trust; 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
7
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 to all statements relating thereto 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 to all statements relating thereto in the Disclosure
Package and the Prospectus.
(viii) 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.
(ix) The Junior Subordinated
Notes are subordinated and junior in right of payment to all
"Senior Obligations" (as defined in the Indenture) of the
Company.
(x) 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.
(xi) The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated herein and compliance by the Company with
its obligations hereunder 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
8
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 material 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
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 have not been
so filed.
(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) The execution, delivery
and performance of this Agreement and the Declaration, the issuance
and sale of the Capital Securities 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
9
authorized by all necessary action (corporate or otherwise)
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.
(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
Capital Securities or distribute the preliminary prospectus, the
Prospectus or any other offering materials relating to the Capital
Securities (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
Capital Securities set forth in Schedule A opposite the name of
such Underwriter (except as otherwise provided in Schedule B), plus
any additional number of Capital Securities 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 Capital Securities shall be an amount equal to
the initial public offering price. The initial public
offering price per Capital Security and the purchase price per
Capital Security 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 Capital Securities
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 Capital Security determined by
agreement between the Representative and the Company for the
Capital Securities to be delivered by the Trust hereunder at the
Closing Time. The commission is set forth in Schedule B.
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(b) Payment of the
purchase price and delivery of certificates for the Capital
Securities 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 fifth 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
Capital Securities to be purchased by them. Unless otherwise
agreed, certificates for the Capital Securities 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.
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 Time 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.
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(b) Prior to the
termination of the offering of the Capital Securities, 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 Capital Securities 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.
(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 Capital Securities, 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 Capital Securities, and furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
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(f) The Offerors
will endeavor, in cooperation with the Underwriters, to qualify the
Capital Securities (and the Capital Securities Guarantee) and the
Junior Subordinated Notes for offering and sale under the
applicable securities laws of such states and the other
jurisdictions of the United States as the Underwriters may
designate; provided, however, that neither of the Offerors shall be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(g) The Company will make
generally available to its security holders and to the Underwriters
as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (which need
not be audited) of the Company and its subsidiaries, covering an
applicable period beginning not later than the first day of the
Company's fiscal quarter next following the "Effective Date" (as
defined in Rule 158(c) under the Securities Act) of the
Registration Statement, which will satisfy the provisions of
Section 11(a) of the Securities Act.
(h) The Offerors will use
reasonable efforts to effect the listing of the Capital Securities
on the New York Stock Exchange; if the Capital Securities are
exchanged for Junior Subordinated Notes, the Company will use its
reasonable best efforts to effect the listing of the Junior
Subordinated Notes on the exchange on which the Capital Securities
were then listed.
(i) The Company,
during the period when the Prospectus is required to be delivered
under the Securities Act, will file promptly all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act.
(j) Until the
business day following the Closing Time, neither the Company nor
the Trust will, without the consent of the Representative, offer or
sell, or announce the offering of, any additional securities
covered by the Registration Statement or by any other registration
statement filed under the Act; provided, however, the Company may,
at any time, offer or sell or announce the offering of any
securities (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 Notes 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 issues securities in underwritten offerings in
one or more non-U.S. currencies in which one of the lead managers
is Banc of America Securities LLC, or (D) pursuant to which
affiliates of the Company offer securities of the Company in
secondary market transactions.
(k) The Offerors will
prepare a final term sheet containing only a description of the
Capital Securities, in a form approved by the Representative and
contained in Schedule D of this Agreement, and will file 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 (such term sheet, the "Final Term
Sheet"). Any such Final Term Sheet is an Issuer Free Writing
Prospectus for purposes of this Agreement.
(l) The Offerors
represent that each has not made, and agree that, unless they
obtain the prior written consent of the Representative, they will
not make, any offer relating to the
13
Capital Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a "free
writing prospectus" (as defined in Rule 405 under the Securities
Act) required to be filed by an Offeror with the Commission or
retained by an Offeror under Rule 433 of the Securities Act;
provided that the prior written consent of the Representative shall
be deemed to have been given in respect of the Issuer Free Writing
Prospectuses included in Schedule C hereto. Any such free
writing prospectus consented to by the Representative is
hereinafter referred to as a "Permitted Free Writing
Prospectus." The Offerors agree that (i) they have treated
and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) they have
complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 under the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The
Offerors consent 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
Capital Securities or their offering, (ii) information that
describes the final terms of the Capital Securities or their
offering and that is included in the Final Term Sheet of the
Offerors contemplated in paragraph (k) above or (iii) information
permitted by Rule 134 of the Securities Act.
(m) If immediately prior to the
third anniversary (the "Renewal Deadline") of the initial effective
date of the Registration Statement, any of the Capital Securities
remain unsold by the Underwriters, the Company and the Trust will
prior to the Renewal Deadline file, if they have not already done
so and the Company is eligible to do so, a new automatic shelf
registration statement relating to the Capital Securities, in a
form satisfactory to the Representative. If the Company is no
longer eligible to file an automatic shelf registration statement,
the Company and the Trust will prior to the Renewal Deadline, if it
has not already done so, file a new shelf registration statement
relating to the Capital Securities, in a form satisfactory to the
Representative, and will use their best efforts to cause such
registration statement to be declared effective within 60 days
after the Renewal Deadline. The Company and the Trust will
take all other action necessary or appropriate to permit the public
offering and sale of the Capital Securities to continue as
contemplated in the expired registration statement relating to the
Capital 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.
(n) If at any time when
Capital Securities remai
