Exhibit 1.1
_______ Capital Securities
BAC CAPITAL TRUST __
(a Delaware Trust)
____% Capital Securities
(Liquidation Amount of $__ per Capital Security)
UNDERWRITING AGREEMENT
_______________
_________, 2001
Banc of America Securities LLC
as Representatives of the several Underwriters
c/o Banc of America Securities LLC
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
BAC Capital Trust __ (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (S)3801 et
seq.), 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 _______ 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 9 hereof), for whom Banc of America Securities
LLC and _______ are acting as representatives (in such capacity, the
"Representatives", however, if the Underwriters named in Schedule A hereto
include only Banc of America Securities LLC and _______, then all references in
this Agreement to the Representatives shall be deemed references to the
Underwriters), with respect to the sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
____% Capital Securities (liquidation amount of $__ 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 _________, 2001 (the "Capital Securities Guarantee
Agreement"), between the Company and The Bank of New York, as trustee (the
"Guarantee Trustee"), and will be entitled to the benefits of certain backup
undertakings described in the Prospectus (as defined herein) with respect to the
Company's agreement pursuant to the [First] Supplemental Indenture (as defined
herein) to pay all 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 have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-70984) and a
related prospectus for the registration under the Securities Act of 1933, as
amended (the "1933 Act") of (i) the Capital Securities, (ii) the Capital
Securities Guarantee, and (iii) the Junior Subordinated Notes (as defined below)
to be issued and sold to the Trust by the Company, have filed such amendments
thereto, if any, and such amended prospectuses as may have been required to the
date hereof, and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. Such registration statement (as
amended) and the prospectus constituting a part thereof (including, in each
case, all documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act and the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")),
as from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
hereinafter referred to as the "Registration Statement" and the "Prospectus,"
respectively, except that, if any revised prospectus shall be provided to the
Underwriters by the Offerors for use 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 by the Offerors pursuant to Rule
424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use. All references in this Agreement to financial
statements and schedules and other information that is "contained," "included"
or "stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that are or are deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act that is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem 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
have been qualified under the Trust Indenture Act of 1939, as amended (the "1939
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"), as guaranteed on a
subordinated basis by the Company, to the extent set forth in the Prospectus,
with respect to distributions and payments upon liquidation and redemption
thereof (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 _________, 2001 (the "Common Securities
Guarantee Agreement" and, together with the Capital Securities Guarantee
Agreement, the "Guarantee
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Agreements") and will be used by the Trust to purchase $___________ aggregate
principal amount of ___% Junior Subordinated Notes due ____ (the "Junior
Subordinated Notes") issued by the Company, under the Indenture (as defined
herein). 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 _________, 2001 (the "Declaration"), among the Company, as Sponsor, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustees (the "Regular Trustees"), The Bank of
New York (Delaware), a Delaware banking corporation (as "Delaware Trustee"), and
The Bank of New York, a New York banking corporation, as property trustee (the
"Property Trustee" and, together with the Delaware Trustee and Regular Trustees,
the "Trustees"), and the holders from time to time of undivided beneficial
interests in the assets of the Trust. The Junior Subordinated Notes will be
issued pursuant to a restated indenture, dated as of November 1, 2001 (the "Base
Indenture"), between the Company and The Bank of New York, as trustee (the "Debt
Trustee"), and a [first] supplement to the Base Indenture, to be dated as of
_________, 2001 (the "[First] Supplemental Indenture," and together with the
Base Indenture, the "Indenture"), 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) At the time the Registration Statement became effective and
as of the date hereof, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, dated the date
hereof (unless the term "Prospectus" refers to a prospectus that has
been provided to the Underwriters by the Trust for use in connection
with the offering of the Securities and that differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case, at the time it is first
provided to the Underwriters for such use) and at Closing Time does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, the Offerors make no representations or warranties
as to (A) that part of the Registration Statement which constitutes the
Statements of Eligibility and Qualification (Forms T-1) under the 1939
Act of the Debt Trustee, the Property Trustee or the Guarantee Trustee
or (B) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Offerors by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement and the Prospectus and actually included therein.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time they
were or hereafter are filed with
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the Commission complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations").
(iii) 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, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) The Trust has been duly created and is validly existing and
in good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and 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 Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor trust and not as
an association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(v) 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 and 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 Prospectus;
the issuance of the Common Securities is not subject to preemptive or
other similar rights.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(vii) 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,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to 12 U.S.C.
1818(b)(6)(D) (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 Prospectus; and the
Declaration has been duly qualified under the 1939 Act.
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(viii) 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 Guarantee Trustee, 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 Prospectus; and the trust pursuant to
the Capital Securities Guarantee Agreement has been duly qualified
under the 1939 Act.
(ix) The Capital Securities have been duly authorized by the
Trust pursuant to the Declaration and, when issued and delivered
pursuant to this Agreement 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 Trust, will be entitled to the
benefits of the Declaration and will conform to all statements relating
thereto contained in 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.
(x) 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.
(xi) 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 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 (the "1940 Act").
(xii) 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 1933 Act or the 1933 Act Regulations or state securities laws and
the qualification of the Declaration, the Capital Securities Guarantee
Agreement and the Indenture under the 1939 Act.
(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 1933 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 1933 Act
and complies in all other material respects with said Rule.
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(ii) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba; provided,
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however, that in the event that such Section 517.075 shall be repealed,
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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.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the condition, financial or otherwise, or in the earnings or business
affairs of the Trust or the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business.
(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 to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
to enter into and perform its obligations under this Agreement, the
Declaration, as Sponsor, the Indenture and each of the Guarantee
Agreements and 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 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. (or the successor(s) to such entity)
(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 Prospectus; and the Indenture has been duly qualified under the
1939 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
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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
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 the Company or the Principal
Subsidiary Bank is a party or by which it or any 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 articles 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 Representatives 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 hereinafter defined) as follows:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings or
business affairs of the Trust, whether or not arising 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 with respect to the Trust.
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(ii) Except as disclosed in 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 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 otherwise, or in the
earnings or business affairs of the Trust, whether or not arising 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 1933 Act or by the 1933 Act Regulations 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, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding would materially and adversely affect the condition, financial or
otherwise, or in the earnings or business affairs of the Trust.
(iv) The execution, delivery and performance of this Agreement, the
Declaration and the Guarantee Agreements, 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 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
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 (except for conflicts, breaches,
violations or defaults which would not, individually or in the aggregate,
be materially adverse to the Trust, or materially adverse to the
transactions contemplated by this Agreement).
(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.
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
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and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Trust, at the price per security set forth in the 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 9 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 shall be a fixed
price to be determined by agreement between the Underwriter and the Offerors.
The initial public offering price and the purchase price 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 Closing Time directly to the Underwriters, a
commission per Capital Security determined by agreement between the
Representatives and the Company for the Capital Securities to be delivered by
the Trust hereunder at Closing Time. The commission is set forth in Schedule B.
(b) Payment of the purchase price for, and delivery of certificates for,
the Capital Securities shall be made at the office of Stroock & Stroock & ▇▇▇▇▇
LLP, or at such other place as shall be agreed upon by the Representatives, the
Company and the Trust, at 10:00 A.M. New York time on the third 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 Representatives, the Trust and the Company (such
time and date of payment and delivery being herein called "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 Representatives 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.
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
Representatives in same day funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and
severally covenants with each Underwriter as follows:
(a) Prior to the termination of the offering of the Capital Securities, the
Offerors will notify the Representatives 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 Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or Prospectus (other than with respect to a document filed with the
Commission pursuant to the
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1934 Act which will be incorporated by reference in the Registration Statement
and Prospectus), (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to 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 1934 Act which will be
incorporated by reference in the Registration Statement and Prospectus), and (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Offerors will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Prior to the termination of the offering of the Capital Securities, the
Offerors (1) will give the Representatives notice of their intention to file or
prepare (i) any amendment to the Registration Statement (including any
post-effective amendment) or (ii) any amendment or supplement to 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) of the 1933 Act Regulations),
will furnish the Representatives 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 Representatives with copies of any document that will be
incorporated by reference in the Prospectus whether pursuant to the 1933 Act,
the 1934 Act or otherwise. Subject to the foregoing, the Offerors will file the
final Prospectus pursuant to Rule 424(b) and Rule 430A under the 1933 Act not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement.
(c) The Offerors will deliver to the Representatives as many signed 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
Representatives may reasonably request and will also deliver to the
Representatives a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(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 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933 Act
or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 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 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
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misleading or if it shall be necessary to amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, 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,
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.
(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 none 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 ▇▇▇▇ ▇▇▇) of
the Registration Statement, which will satisfy the provisions of Section 11(a)
of the 1933 Act.
(h) Although the Company and the Trust do not currently intend to apply to
list the Capital Securities on any national or international exchange, if the
Capital Securities are exchanged for Junior Subordinated Notes while the Capital
Securities are listed on any national or international exchange, the Company
will use its best efforts to effect the listing of the Junior Subordinated Notes
on any exchange on which the Capital Securities are then listed.
(i) The Company, during the period when the Prospectus is required to be
delivered under the 1933 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
1934 Act.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of each Offerors' obligations under this Agreement, and will
pay: (i) the printing and filing of the Registration Statement as originally
filed and of each amendment thereto, (ii) the preparation, issuance and delivery
of the certificates for the Capital Securities, (iii) the fees and disbursements
of the Company's and the Trust's counsel and accountants, (iv) the qualification
of the Capital Securities, the Capital Securities Guarantee and the Junior
Subordinated Notes under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the fees and disbursements of
Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters, in connection
therewith and in connection with the preparation of any blue sky survey, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National
11
Association of Securities Dealers, Inc. (the "NASD"), if applicable, (viii) the
fees and expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Property Trustee, the
Delaware Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Declaration and the
Certificate of Trust; (x) any fees payable in connection with the rating of the
Capital Securities and Junior Subordinated Notes; (xi) the cost and charges of
any transfer agent or registrar; and (xii) the cost of qualifying the Capital
Securities with DTC.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9 hereof, the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for
the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Offerors herein contained or in certificates of officers of
the Company or trustees of the Trust, to the performance by the Offerors of
their obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective prior to the
date hereof or at such later time and date as may be approved by the
Representatives and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Regulations and in
accordance with Section 3(b), and prior to Closing Time, the Offerors shall have
provided evidence satisfactory to the Representatives of such timely filing.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P.,
counsel for the Company, dated as of the Closing Time, to the effect of
paragraphs (i) and (v) through (xvii) below, and the favorable opinion of ▇▇▇▇
▇. ▇▇▇▇▇▇▇, General Counsel to the Company, dated as of the Closing Time, to the
effect of paragraphs (ii), (iii) and (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, conduct its business as
described in the Prospectus and perform its obligations under this
Agreement, and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; 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
12
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. (S) 55, as amended)
non-assessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of common 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, to the best
knowledge of such counsel, any other security interests, claims, liens or
encumbrances.
(iv) To the best knowledge of such counsel, there is no 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 which is not adequately disclosed in the
Prospectus, and there is no franchise, contract, or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required.
(v) The Registration Statement has become effective under the 1933
Act; to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; the
Registration Statement, 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 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations.
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject to
the Permitted Exceptions, and except insofar as the enforceability of the
indemnity and contribution provisions contained in this Agreement may be
limited by federal and state securities laws).
(vii) No authorization, approval, consent or order of, or filing with,
any court or governmental authority or agency is required on behalf of the
Company or the Trust in connection with the offering, issuance or sale of
the Capital Securities, the Capital Securities Guarantee and the Junior
Subordinated Notes by the Offerors, except (A) such as may be required
under the 1933 Act and the 1933 Act Regulations and such as may be required
under the blue sky or insurance laws of any jurisdiction, and (B) the
qualification of the Declaration, the Capital Securities Guarantee
Agreement and the Indenture under the 1939 Act.
(viii) The Declaration has been duly authorized, executed and delivered
by the Company and the Regular Trustees and has been duly qualified under
the 1939 Act.
13
(ix) Each of the Guarantee Agreements has been duly authorized,
executed and delivered by the Company; the Capital Securities Guarantee
Agreement, assuming it is duly authorized, executed and delivered by the
Guarantee Trustee, constitutes 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 the Capital Securities Guarantee Agreement has
been duly qualified under the 1939 Act. The Common Securities Guarantee
Agreement constitutes 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.
(x) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is 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; the Indenture has been duly qualified under the 1939
Act; and the Indenture conforms in all material respects to the description
thereof in the Prospectus, as supplemented or amended.
(xi) The Junior Subordinated Notes have been duly authorized and
executed by the Company and, when authenticated by the Trustee in the
manner provided in the Indenture and delivered against payment therefor,
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
the Junior Subordinated Notes conform in all material respects to the
description thereof in the Prospectus, as supplemented or amended.
(xii) Neither the Company nor the Trust is, and upon the issuance and
sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus neither will be, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the 1940 Act.
(xiii) The forms of the Common Securities and the Capital Securities
and the Declaration conform in all material respects to the description
thereof contained in the Prospectus.
(xiv) All of the issued and outstanding Common Securities of the Trust
are directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(xv) The Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus.
(xvi) This Agreement has been duly executed and delivered by the
Trust.
14
(xvii) Neither the issuance and sale of the Notes, the
consummation of any other of the transactions contemplated by this
Agreement nor the fulfillment of the terms thereof will conflict with,
result in a breach of, or constitute a default under any provision of
applicable law or the Certificate of Incorporation or the Bylaws of
the Company, each as amended to date, or the terms of any material
indenture or other agreement or instrument known to such counsel and
to which the Company or the Principal Subsidiary Bank is a party or
bound, or any order or regulation known to such counsel to be
applicable to the Company or the Principal Subsidiary Bank of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or the Principal
Subsidiary Bank.
In rendering such opinions, such counsels may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina, the State of Delaware, or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to counsel for
the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on
the representations and warranties of the Offerors contained herein or in the
Declaration, the Indenture, the Guarantee Agreements, that certain subscription
agreement, of even date herewith, between the Company and the Trust covering the
Common Securities and that certain note purchase agreement, of even date
herewith, between the Company and the Trust, or on certificates of responsible
officers of the Company and its subsidiaries and public officials.
(2) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A.,
Special Delaware counsel to the Offerors, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have
been made; the Trust has all necessary power and authority to own
property and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its
obligations under this Agreement, the Capital Securities and the
Common Securities.
(ii) Assuming due authorization, execution and delivery by the
Company and the Trustees, the Declaration is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by the Permitted Exceptions.
(iii) The Common Securities have been duly authorized by the
Declaration and are validly issued and represent undivided beneficial
interests in the assets of the Trust.
(iv) The Capital Securities have been duly authorized by the
Declaration and are validly issued and, subject to the terms of the
Declaration, when delivered to and paid for by the Underwriters
pursuant to this Agreement, will be validly issued, fully paid and
non-assessable beneficial interests in the assets of the Trust; the
holders of the Capital
15
Securities will, subject to the terms of the Declaration, be entitled
to the same limitation of personal liability under Delaware law as is
extended to stockholders of private corporations for profit; and the
issuance of the Capital Securities is not subject to preemptive or
other similar rights.
(v) This Agreement has been duly authorized by the Trust.
(vi) The issuance and sale by the Trust of the Capital
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the
Trust of the transactions contemplated hereby and the compliance by
the Trust with its obligations hereunder will not violate (A) any of
the provisions of the Certificate of Trust or the Declaration or (B)
any applicable Delaware law or administrative regulation.
(3) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A.,
Special Delaware counsel to The Bank of New York (Delaware), in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York (Delaware) is a Delaware banking
corporation with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of the Declaration.
(ii) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. The Declaration
has been duly executed and delivered by the Delaware Trustee, and
constitutes the legal, valid and binding obligation of the Delaware
Trustee, enforceable against the Delaware Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions.
(iii) The execution, delivery and performance of the Declaration
by the Delaware Trustee does not conflict with or constitute a breach
of the articles of organization or bylaws of the Delaware Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(4) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of New York, as Debt Trustee under the
Indenture, as Guarantee Trustee under the Capital Securities Guarantee
Agreement, and as Property Trustee under the Declaration, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York is a New York banking corporation with
trust powers, duly organized, validly existing and in good standing
under the laws of the State
16
of New York with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of, the Declaration, the Indenture and the Capital Securities
Guarantee Agreement.
(ii) The execution, delivery and performance by the Debt Trustee
of the Indenture, the execution, delivery and performance by the
Property Trustee of the Declaration, and the execution, delivery and
performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement have been duly authorized by all necessary
corporate action on the part of the Debt Trustee, the Property Trustee
and the Guarantee Trustee, respectively. The Indenture has been duly
executed and delivered by the Debt Trustee, and constitutes the legal,
valid and binding obligations of the Debt Trustee, enforceable against
the Debt Trustee in accordance with its terms, except as enforcement
thereof may be limited by the Permitted Exceptions. The Declaration
has been duly executed and delivered by the Property Trustee, and
constitutes the legal, valid and binding obligations of the Property
Trustee, enforceable against the Property Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions. The Capital Securities Guarantee Agreement has
been duly executed and delivered by the Guarantee Trustee, and
constitutes the legal, valid and binding obligations of the Guarantee
Trustee, enforceable against the Guarantee Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions.
(iii) The execution, delivery and performance of the Indenture by
the Debt Trustee does not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Debt Trustee. The execution,
delivery and performance of the Declaration by the Property Trustee
does not conflict with or constitute a breach of the Articles of
Organization or Bylaws of the Property Trustee. The execution,
delivery and performance of the Capital Securities Guarantee Agreement
by the Guarantee Trustee does not conflict with or constitute a breach
of the Articles of Organization or Bylaws of the Guarantee Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Debt
Trustee of the Indenture. No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking
authority is required for the execution, delivery or performance by
the Property Trustee of the Declaration. No consent, approval or
authorization of, or registration with or notice to, any New York or
federal banking authority is required for the execution, delivery or
performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement.
(5) The favorable opinion, dated as of Closing Time, of Stroock
& Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the legal existence of the
Company and the Trust, the Capital Securities, the Indenture, the Capital
Securities Guarantee Agreement, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Representatives may require.
17
In giving its opinion, Stroock & Stroock & ▇▇▇▇▇ LLP may rely as to
certain matters of Delaware law upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
P.A., counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(2) hereto.
(6) The favorable opinion of Stroock & Stroock & ▇▇▇▇▇ LLP, special
tax counsel to the Company and the Trust, as to certain Federal tax matters set
forth in the Prospectus under "United States Federal Income Taxation."
(7) In giving their opinions required by subsection (b) of this
Section, but without opining in connection therewith, ▇▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P. shall each additionally state, that although he or
it has not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness, or fairness of the statements
contained in the Registration Statement, that nothing has come to his or its
attention that has caused him or it to believe that the Registration Statement
(except for financial statements and schedules and other financial or
statistical data included or incorporated by reference, therein, as to which
counsel need make no statement), at the time it became effective or as of the
date of his or its respective opinion, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein, as to which
counsel need make no statement), as at the date hereof or at Closing Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(8) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs 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, except as
set forth or contemplated in the Prospectus, as amended or supplemented, and the
Representatives shall have received a certificate of any Senior Vice President
or Treasurer or any other authorized officer of the Company and a certificate of
a Regular Trustee of the Trust, and dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Trust or
the Company, as the case may be, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission, and (v) no litigation or proceeding
shall be threatened or pending to restrain or enjoin the issuance or delivery of
the Capital Securities, or which in any way affects the validity of the Capital
Securities.
(9) At the Closing Time, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to the Representatives), dated as of the Closing Time, in
form and substance satisfactory to the
18
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and stating in
effect that:
(i) They are independent accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of
the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders,
the board of directors, executive committee and audit committee of the
Company and the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a specified date
not more than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim financial
statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and
Prospectus and reading the unaudited interim financial data, if any,
for the period from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and Prospectus
to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding the
specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by
19
reference in the Registration Statement and Prospectus, for them to be
in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days prior
to the date of the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than scheduled
repayments of such debt) or any decreases in stockholders' equity of
the Company and the subsidiaries on a consolidated basis as compared
with the amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of the latest
available financial data to a specified date not more than five
business days prior to the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in stockholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Prospectus discloses have occurred or may
occur, or PricewaterhouseCoopers LLP shall state any specific changes
or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers LLP has
carried out certain other specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the Representatives and
agreed to by PricewaterhouseCoopers LLP, and has found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
In addition, at the time this Agreement is executed, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter or letters, dated the date
of this Agreement, in form and substance satisfactory to the Representatives, to
the effect set forth in this subsection 9.
(10) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Capital Securities as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Offerors,
in connection with the issuance and sale of the Capital Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Underwriters.
(11) At Closing Time, at least one "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the 1933
Act), has rated the Capital Securities in one of its four highest rating
categories and there shall not have occurred any decrease in the ratings of any
of the securities of the Company or of the Capital Securities by any nationally
recognized statistical rating organization, and no such organization shall have
publicly
20
announced that it has under surveillance or review its rating of any of the
Company's securities or any of the Capital Securities for a possible downgrade.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 6, and 7 shall survive any such termination and will remain in full
force and effect.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Offerors will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Offerors by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
or arises out of or is based upon statements in or omissions from that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture Act of any
Trustee, and (ii) such indemnity with respect to the preliminary Prospectus or
any final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Capital Securities which are the
subject thereof if such person did not receive a copy of the final Prospectus
(or the final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Capital Securities to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission of a material fact
contained in any preliminary Prospectus was corrected in the final Prospectus or
the final
21
Prospectus as amended or supplemented. This indemnity agreement will be in
addition to any liability which the Offerors may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Trust, the Trustees and each of the Company's directors, each of
the Company's officers who signs the Registration Statement and each of the
Trustees who signs the Registration Statement, and each person who controls the
Company or the Trust within the meaning of either the 1933 Act or the 1934 Act,
to the same extent as the foregoing indemnity from the Offerors to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Offerors by or on behalf of such Underwriter
through the Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Offerors acknowledge that the statements set forth in the last paragraph of the
cover page and under the heading "Underwriting" or "Plan of Distribution" in any
preliminary Prospectus or the final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and the Representatives
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 6. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the
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action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 6 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Offerors on the grounds of policy or otherwise, the
Offerors and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Offerors and
one or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule B hereto and the Offerors is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Capital Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Capital
Securities purchased by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 6, each person
who controls an Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person who controls
either of the Offerors within the meaning of either the 1933 Act or the 1934
Act, each officer or trustee of the Offerors who shall have signed the
Registration Statement and each director or trustee of the Offerors shall have
the same rights to contribution as the Offerors, subject in each case to clause
(y) of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
(e) The Company agrees to indemnify the Trust against all losses, claims,
damages or liabilities due from the Trust under Section 6(a) hereof.
SECTION 7. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such exchange, (ii) a banking moratorium shall have been declared
by Federal authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representatives, impracticable to market the Capital
Securities.
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SECTION 8. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Capital Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Capital Securities each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Capital
Securities this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Offerors shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 9. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to them at Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of __________, Managing
Director; notices to the Trust and the Company shall be directed to them at Bank
of America Corporation, Corporate Treasury Division, NC1-007-23-01, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice
President.
SECTION 10. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Trust, and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and the Company and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Trust and the Company and their respective successors, and said controlling
persons and officers, directors and trustees and their heirs and legal
representatives,
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and for the benefit of no other person, firm or corporation. No purchaser of
Capital Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 11. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 12. COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Trust and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_______________________
Name:
Title:
BAC CAPITAL TRUST __
By:________________________
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
For themselves and as Representatives
of the several Underwriters named in
Schedule A hereto.
By: Banc of America Securities LLC
By: ___________________________________
Name:
Title:
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SCHEDULE A
NUMBER OF CAPITAL
NAME OF UNDERWRITER SECURITIES
------------------- ----------
Banc of America Securities LLC
==========
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SCHEDULE B
Underwriting Agreement dated _______ __, 2001
Registration Statement No. 333-70984
Underwriters: Banc of America Securities LLC
Address of Underwriters: c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Title, Purchase Price and Description of Securities:
Title: ____% Capital Securities due ____
1. The initial public offering price per security for the Capital
Securities, determined as provided in said Section 2, shall be $______.
2. The purchase price per security for the Capital Securities to be
paid by the several Underwriters shall be $______, being an amount equal to
the initial public offering price set forth above.
3. The compensation per Capital Securities to be paid by the Company
to the several Underwriters in respect of their commitments hereunder shall
be $_____.
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