January 2, 2009 Merrill Lynch, Pierce, Fenner & Smith Incorporated First Republic Securities Company, LLC c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center New York, NY 10080 Re: Issuance of Medium-Term...
Exhibit 1.9
January 2,
2009
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
First Republic Securities Company, LLC
First Republic Securities Company, LLC
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
Xxx Xxxx, XX 00000
4 World Financial Center
Xxx Xxxx, XX 00000
Re: Issuance of Medium-Term Senior/Subordinated Notes, Series L, by Bank of America Corporation
Dear Ladies and Gentlemen:
The Distribution Agreement dated April 10, 2008 (the “Agreement”), among Bank of
America Corporation (“Bank of America”) and the Selling Agents named therein,
provides for the issue and sale by Bank of America of its Senior Medium Term Notes,
Series L (the “Senior Notes”) and its Subordinated Medium-Term Notes, Series L (the
“Subordinated Notes,” and together with the Senior Notes, the “Notes”).
Subject to and in accordance with the terms and conditions of the Agreement, and subject
to the reservation by Bank of America of the right to sell Notes directly on its own behalf,
Bank of America hereby appoints each of you as a new Selling Agent in accordance with
the provisions of Section 1(f) of the Agreement for the purposes of the offer and sale of
the Notes from time to time. Bank of America reserves the right to sell Notes, at any
time, on its own behalf to any unsolicited purchaser, whether directly to such purchaser
or through an agent for such purchaser. Upon the sale of any Notes to an unsolicited
purchaser, neither of you shall be entitled to any commission pursuant to the Agreement.
In consideration of Bank of America appointing you as a new Selling Agent in respect of
the Notes under the Agreement, each of you hereby undertakes, severally and not jointly,
for the benefit of Bank of America and each of the other Selling Agents, that, in relation
to each series of the Notes as to which you act as a Selling Agent, you will perform and
comply with all the duties and obligations of a Selling Agent under the Agreement.
Notwithstanding anything contained in the Agreement, each of you shall be vested with
all authority, rights, powers, duties and obligations of a Selling Agent in relation to the
issue of such notes as if you were originally named as a Selling Agent under the
Agreement.
The parties hereto currently expect that you will from time to time make offers to sell one
or more series of Notes that are equity-linked, commodity-linked or that otherwise
constitute “indexed notes” (as such term is used in the Prospectus). In such cases,
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notwithstanding the provisions set forth in Section 1(d) of the Agreement, your obligation
to purchase such Notes as principal or to act as an agent, and the applicable underwriting
discount or selling concession to which you shall be entitled will be set forth in the
applicable Pricing Supplement or term sheet. In addition, unless otherwise agreed by the
parties hereto, such Notes will initially be issued into an account designated by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”), and MLPF&S will be
responsible to allocate your respective compensation payable hereunder between
MLPF&S and First Republic Securities Company, LLC (it being understood that Bank of
America shall be relieved of any and all responsibility, duty or obligation with respect to
any compensation payable to any party hereto for any series of such Notes once such
Notes and the related compensation are allocated to MLPF&S).
Upon the execution and delivery of this letter agreement, Bank of America shall comply
with its notice obligations set forth in the final sentence of Section 1(f) of the Agreement.
Further, solely with respect to “indexed notes” (as such term is used in the Prospectus) of
Bank of America that may be offered and sold from time to time that constitute structured
investments of MLPF&S or that are service marks or trademarks of Xxxxxxx Xxxxx & Co.,
Inc. (including, but not limited to, Accelerated Return Notes, Market Index Target Term
Securities, Strategic Accelerated Redemption Securities and Leveraged Index Return
Notes), notwithstanding the provisions set forth in Section 1(f) of the Agreement, Bank
of America agrees to notify MLPF&S of each and any appointment of any additional
selling agents for the offer and sale of such Notes, whether such appointment is on a onetime
basis or an on-going basis.
Accompanying this letter agreement is a copy of the Agreement, the provisions of which
are incorporated herein by reference. By signing this letter, you acknowledge that you
have received a copy of the Agreement from Bank of America. Copies of the officer’s
certificate, opinions of counsel, and auditors’ letter described in the Agreement are not
enclosed but are available upon your request.
Capitalized terms used but not defined herein have the meanings set forth in the Agreement.
This letter agreement, like the Agreement, is governed by and construed in accordance
with the laws of the State of New York, notwithstanding any otherwise applicable
conflicts of law principles. This letter agreement may be signed in one or more
counterparts, each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
If the above is in accordance with your understanding of our agreement, please sign and return this letter to us.
In addition, your respective addresses to use for notice hereunder, and under the Agreement and the Administrative Procedures, are set forth on Exhibit A attached hereto.
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These
actions will confirm your appointment and your acceptance and agreement to act
as Selling Agent in connection with the issue and sale of the Notes
under the terms and
conditions of the Agreement.
Very truly yours, | ||||||
BANK OF AMERICA CORPORATION | ||||||
By:
|
/s/ B. Xxxxxxx Xxxxxx, Xx. | |||||
Name:
|
B. Xxxxxxx Xxxxxx, Xx. | |||||
Title:
|
Senior Vice President | |||||
AGREED AND ACCEPTED: | ||||||
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||||
By: | /s/ Xxxxx Xxxxxxxxx | |||||
Name: | Xxxxx Xxxxxxxxx | |||||
Title: | Director, Structured Investments | |||||
Address: | 4 World Financial Xxxxxx | |||||
0xx Xxxxx | ||||||
Xxx Xxxx, XX 00000 | ||||||
FIRST REPUBLIC SECURITIES COMPANY, LLC | ||||||
By: | /s/ Xxxxx Xxxxxxxxx | |||||
Name: | Xxxxx Xxxxxxxxx | |||||
Title: | President | |||||
Address: | 000 Xxxx Xx. | |||||
Xxx Xxxxxxxxx, XX 00000 | ||||||
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EXHIBIT A
NOTICE INFORMATION
NOTICE INFORMATION
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Global Investments & Insurance Solutions
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxxx@xx.xxx
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Global Investments & Insurance Solutions
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxxx@xx.xxx
First Republic Securities Company, LLC
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Director of Technology/Municipal Principal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Director of Technology/Municipal Principal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx
A-1