EXHIBIT 1.1
[Debt Securities]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
------------, ----
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of _________________ between the Company and ____________,
as trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, each shall be deemed to
refer to such firm or firms.
1. Representations and Warranties. (a)The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Securities. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or Rule
434 under the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424 or Rule
434 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, and the Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
(ii) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture Act of
the Trustee or (B) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(b) Each Underwriter represents and agrees that it has not and will not,
directly or indirectly, offer, sell or deliver any of the Securities or
distribute the Final Prospectus or any other offering materials relating
to the Securities in or from any jurisdiction except under circumstances
that will, to the best of its knowledge and belief, result in compliance
with any applicable laws and regulations thereof and that, to the best of
its knowledge and belief, will not impose any obligations on the Company
except as set forth herein.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter,
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and each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto, the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule
II hereto, except that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto, less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates may be deposited with The
Depository Trust Company ("DTC") or a custodian of DTC and registered in the
name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several Underwriters that:
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(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 or Rule 434, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives
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may reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and (i)
pursuant to which the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the Company issues
securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (the "Principal Subsidiary Bank") is a national banking
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association formed under the laws of the United States and
authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, 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. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect to the Securities with the
[________] Stock Exchange and such counsel received no information
stating that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company 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. ss.1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, in the case
of the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture (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
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subject to 12 U.S.C. ss.1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
(vii) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(viii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final 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 Act and
the Exchange Act and the respective rules thereunder;
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company 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 except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C. ss.1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy);
(x) no consent, approval, authorization or order of any court
or governmental agency or body is required on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under the certificate of
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incorporation or by-laws of the Company or (1) 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 (2) 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; and
(xii) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although 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, it has no reason
to believe that the Registration Statement or any amendment thereof
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, 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 certificates of responsible officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock & Stroock &
▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, any Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully
8
examined the Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
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
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(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 Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the regulations thereunder.
(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 shareholders,
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
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unaudited condensed consolidated interim financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement and Final 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 Final 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 Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Final
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 shareholders'
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 Final 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 shareholders'
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 Final Prospectus and
which are specified by the Representatives and agreed to by
PricewaterhouseCoopers LLP, and has found such amounts, percentages
and
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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
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange 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 Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
11
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 Company 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 Company 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 1939 Act of
either of the Trustees, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary 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
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 Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company 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 Company acknowledges that the statements set forth in the
language on the cover page required by Item 509 of Regulation S-K and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
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 you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
12
be made against the indemnifying party under this Section 7, 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 7. 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 7 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 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 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
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 Company 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 I hereto and the Company 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 Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
13
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, 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).
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company 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 Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 6
and 7 hereof and this Section 10 shall survive the termination or cancellation
of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and
14
confirmed to them, at the address specified in Schedule I hereto, with a copy
to: Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Bank of America Corporate Center, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Secretary,
with a copy to each of: Bank of America Corporation, Bank of America Corporate
Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ 1007-20-1, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel; and ▇▇▇▇▇ ▇▇▇▇▇ Mulliss
& ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By:
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day) funds or wire
transfer to an account previously designated to the Representatives by the
Company or, if agreed to by the Representatives and the Company, by
certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City time,
Office of Stroock & Stroock & ▇▇▇▇▇ LLP
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from PricewaterhouseCoopers LLP
delivered pursuant to Section 5(e) at the time this Agreement is executed:
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , 19 ,
(the "Delivery Date"),$ principal amount of the Company's (the
"Securities")offered by the Company's Final Prospectus dated , 19 , receipt
of a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest, if any, thereon from ,
19 , to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully registered
form and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal amount
of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
By:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
