EXHIBIT 1.5
BANK OF AMERICA CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
[Date]
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 1(f)
of this Agreement.
Dear Sirs:
Bank of America Corporation, a Delaware corporation and the successor by
merger to NationsBank Corporation (the "Corporation"), has authorized and
proposes to issue and sell from time to time in the manner contemplated by this
Agreement its Senior Medium-Term Notes, Series __ (the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated Notes," and
together with the Senior Notes, the "Notes"). The Senior Notes are to be issued
pursuant to an Indenture dated as of January 1, 1995 between NationsBank
Corporation and U.S. Bank Trust National Association (the "Senior Trustee"), as
successor trustee to BankAmerica National Trust Company, as supplemented by a
First Supplemental Indenture dated as of September 18, 1998 among NationsBank
Corporation, NationsBank (DE) Corporation and the Senior Trustee (collectively,
the "Senior Indenture"). The Subordinated Notes are to be issued pursuant to an
Indenture dated as of January 1, 1995 between NationsBank Corporation and The
Bank of New York (the "Subordinated Trustee"), as trustee, as supplemented by a
First Supplemental Indenture dated as of August 28, 1998 among NationsBank
Corporation, NationsBank (DE) Corporation and the Subordinated Trustee
(collectively, the "Subordinated Indenture"). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the "Trustees," and
the Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures."
The Notes are unsecured debt securities which have been registered under
the Securities Act of 1933, as amended (the "1933 Act"), on Form S-3 with the
Securities and Exchange Commission (the "SEC") $___________ under Registration
No. 333-_______. The registration statement has been declared effective by the
SEC, and the Trustees have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Such registration statement (and any further
registration statement which may be filed by the Corporation for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus relating
to the offer and sale of the Corporation's debt securities constituting a part
thereof, as supplemented by a prospectus supplement dated on or about the date
hereof relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to collectively herein as the
"Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided to the
Agents by the Corporation for use in connection with the offering of the Notes
which is not required to be filed by the Corporation pursuant to Rule 424(b) or
Rule 434 of the rules and regulations of the SEC under the 1933 Act (the "1933
Act Regulations"), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agent for such use.
The Corporation confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") with respect to the issue and sale from
time to time by the Corporation of the Notes as follows:
SECTION 1. Appointment of Agents.
(a) Appointment. Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of you as Agent in connection with the offer
and sale of the Notes. Notwithstanding the foregoing or any other provision
herein to the contrary, the Corporation 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, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(b) Solicitations as Agent. Subject to the terms and conditions set forth
herein, each Agent agrees, as agent of the Company, to use its reasonable best
efforts when requested by the Company to solicit offers to purchase the Notes
upon the terms and conditions set forth in the Prospectus and the administrative
procedures with respect to the sale of Notes as may be agreed upon from time to
time between the Agents and the Corporation (the "Procedures"). Initial
Procedures dated __________, _____ shall remain in effect until changed in
writing signed by the Agents and the Corporation. The Agents and the Corporation
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures. Notwithstanding any provision herein to
the contrary, the Corporation reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agent,
commencing at any time for any period of time or permanently. The Corporation
will timely deliver notice to the Agents of its decision to suspend
solicitations. Upon receipt of instructions from the Corporation, the Agents
will forthwith suspend solicitation of purchases of the Notes until such time as
the Corporation has advised the Agents that such solicitation may be resumed.
Each Agent will communicate to the Corporation, orally, each offer to
purchase Notes solicited by such Agent on an agency basis, other than those
offers rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes by persons
solicited by the Agent, as a whole or in part, and any such rejection shall not
be deemed a breach of the Agent's agreement contained herein. The Corporation
may accept or reject any proposed purchase of the Notes, in whole or in part,
and any such rejection shall not be deemed a breach of the Corporation's
agreement herein.
All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Corporation and such Agent.
The purchase price, interest rate, maturity date and other terms of the Notes
(as applicable) specified in Exhibit B hereto shall be agreed upon by the
Corporation and such Agent and set forth in a pricing supplement to the
Prospectus (a "Pricing Supplement") to be prepared following each acceptance by
the Corporation
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of an offer for the purchase of Notes.
Such Agent shall make reasonable efforts to assist the Corporation in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Corporation. The Agent shall not
have any liability to the Corporation in the event any such agency purchase is
not consummated for any reason other than the gross negligence of the Agent. If
the Corporation shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Corporation shall (i) hold the Agent for such
purchase harmless against any loss, claim or damage arising from or as a result
of such default by the Corporation and (ii) notwithstanding such default, pay to
such Agent any commission to which it would be entitled in connection with such
sale.
(c) Commissions. For those offers to purchase Notes accepted by the
Corporation, the Agent shall be paid a commission. Unless otherwise agreed
between the Corporation and the Agent and, if required by law or otherwise,
disclosed in a Pricing Supplement, such commission shall be an amount equal to
the applicable percentage of the principal amount of each Note sold by the
Corporation as a result of a solicitation made by such Agent as set forth in
Exhibit C hereto.
(d) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Corporation as principal, but an Agent and the
Corporation may expressly agree from time to time that such Agent shall purchase
Notes as principal. In the event that an Agent and the Corporation shall
expressly so agree, Notes shall be purchased by such Agent as principal. Unless
otherwise agreed between the Corporation and the Agent and, if required by law
or otherwise, disclosed in a Pricing Supplement, each Note sold to an Agent as
principal shall be purchased by such Agent at a price equal to 100% of the
principal amount thereof less a discount equivalent to the applicable
commissions set forth in Exhibit C hereto and may be resold by such Agent at
prevailing market prices at the time or times of resale as determined by such
Agent. Such purchases as principal shall otherwise be made in accordance with
terms agreed upon by the Agent and the Corporation (which shall be agreed upon
orally, with written confirmation prepared by the Agent and delivered to the
Corporation within two business days of such oral agreement). In the absence of
a separate written agreement, the Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations,
warranties and covenants of the Corporation herein contained and shall be
subject to the terms and conditions set forth herein, including Section 10(b)
hereof.
(e) Sub-Agents. An Agent may engage the services of any other broker or
dealer in connection with the resale of any Notes purchased as principal but no
Agent may appoint sub-agents. In connection with sales by an Agent of Notes
purchased by such Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount received in connection with such purchases
from the Corporation to such brokers and dealers.
(f) Appointment of Additional Agents. Notwithstanding any provision herein
to the contrary, the Corporation reserves the right to appoint additional agents
for the offer and sale of Notes, which agency may be on an on-going basis or on
a one-time basis. Any such additional agent shall become a party to this
Agreement and shall thereafter be subject to the provisions hereof and entitled
to the benefits hereunder upon the execution of a counterpart hereof or other
form of acknowledgment of its appointment hereunder, including the form of
letter attached hereto
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as Exhibit D, and delivery to the Corporation of addresses for notice hereunder
and under the Procedures. After the time an Agent is appointed, the Corporation
shall deliver to the Agent, at such Agent's request, copies of the documents
delivered to other Agents under Sections 4(a), 4(b) and 4(c) and, if such
appointment is on an on-going basis, Sections 6(b), 6(c) and 6(d) hereof. If
such appointment is on an on-going basis, the Corporation will notify the other
active Agents of such appointment.
(g) Reliance. The Corporation and the Agents agree that any Notes the
placement of which an Agent arranges shall be placed by such Agent in reliance
on the representations, warranties, covenants and agreements of the Corporation
contained herein and on the terms and conditions and in the manner provided
herein or provided in the Procedures.
(h) Sale of Notes. The Corporation shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Corporation from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold or otherwise monitoring the
availability of Notes for sale under the Registration Statement.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Corporation of an offer for the
purchase of Notes (whether through an Agent as agent or to an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Corporation meets the requirements for use of Form S-3 under
the 1933 Act and has filed with the SEC the Registration Statement, which
has become 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.
(ii) As of the date hereof, when the Prospectus as supplemented with
respect to the Notes is first filed pursuant to Rule 424 under the 1933
Act, when any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement) and as of the applicable Representation Date, (a)
the Registration Statement, as amended or supplemented as of any such
time, the Prospectus, when filed, and the applicable Indenture will comply
in all material respects with the applicable requirements of the 1933 Act,
the 1939 Act and the 1934 Act and the respective rules and regulations
thereunder, (b) 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 (c) the
Prospectus, as amended or
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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 Corporation makes no representations or warranties as to
(x) 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 or (y) 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 Corporation by or on behalf
of any Agent specifically for use in connection with the preparation of
the Registration Statement and the Prospectus.
(iii) The Corporation has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba; provided, however,
that in the event that such Section 517.075 shall be repealed, or amended
such that issuers shall no longer be required to disclose in prospectuses
information regarding business activities in Cuba or that a broker, dealer
or agent shall no longer be required to obtain a statement from issuers
regarding such compliance, then this representation and agreement shall be
of no further force and effect.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Corporation and delivered to an Agent or to counsel for such
Agent in connection with an offering of Notes or the sale of Notes to an Agent
as principal shall be deemed a representation and warranty by the Corporation to
such Agent as to the matters covered thereby on the date of such certificate and
at each Representation Date subsequent thereto.
SECTION 3. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will notify the Agents
immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) 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) the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus (other than with respect to a
document filed with the SEC pursuant to the 1934 Act which will be incorporated
by reference in the Registration Statement and the Prospectus), (iv) any request
by the SEC 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 SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Corporation 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) Notice of Certain Proposed Filings. The Corporation will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration
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of additional Notes or any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates or maturity dates of Notes
or similar changes or an amendment or supplement effected by the filing of a
document with the SEC pursuant to the 1934 Act) and, upon request, will furnish
the Agents with copies of any such registration statement or amendment or
supplement proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any such
registration statement or amendment or supplement in a form as to which the
Agents or their counsel reasonably object.
(c) Copies of the Registration Statement and the Prospectus and 1934 Act
Filings. The Corporation will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Corporation will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes under the Act. Upon
request, the Corporation will furnish to the Agents a paper copy of any Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K
filed by the Corporation with the Commission pursuant to the 1934 Act as soon as
practicable after the filing thereof.
(d) Preparation of Pricing Supplements. The Corporation will prepare, with
respect to any Notes to be sold through or to an Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Corporation, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes any Agent may then own
as principal, and the Corporation will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Corporation with
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respect to each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Corporation
shall furnish such information to the Agents, confirmed in writing, and
thereafter shall cause the Prospectus to be amended or supplemented to include
or incorporate by reference financial information with respect thereto, as well
as such other information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Corporation
for the preceding fiscal year, the Corporation shall furnish such information to
the Agents and thereafter shall cause the Registration Statement and the
Prospectus to be amended to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements, as may be required
by the 1933 Act or the 1934 Act or otherwise.
(h) Earnings Statements. The Corporation will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the first day of the
Corporation's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualification. The Corporation will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Corporation shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. The Corporation will file such statements and
reports as may be required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Corporation will promptly advise the
Agents of the receipt by the Corporation of any notification with respect to the
suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) 1934 Act Filings. The Corporation, 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 SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) Suspension of Certain Obligations. The Corporation shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section or the provisions of Sections 6(b)(ii), 6(c)(iii) and 6(d)(iii) during
any period from the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agent pursuant to a request from the
Corporation and (ii) the Agents shall not then hold any Notes as principal
purchased from the Corporation, to the time the Corporation shall determine that
solicitation of purchases of the
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Notes should be resumed or shall subsequently agree for the Agents to purchase
Notes as principal.
SECTION 4. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase the Notes as
agent of the Corporation, the obligations of any purchasers of the Notes sold
through any Agent as agent and any obligation of an Agent to purchase Notes as
principal or otherwise will be subject to the accuracy of the representations
and warranties on the part of the Corporation herein and to the accuracy of the
statements of the Corporation's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Corporation of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion of Xxxxx Xxxxx
Mulliss & Xxxxx, L.L.P., counsel to the Corporation, to the effect of
paragraphs (i) and (iv) through (x) below, and the opinion of Xxxx X.
Xxxxxxx, Executive Vice President and General Counsel to the Corporation,
to the effect of paragraphs (ii) and (iii) 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
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) This Agreement has been duly authorized, executed and
delivered by the Corporation and constitutes a legal, valid and
binding agreement of the Corporation, enforceable against the
Corporation 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
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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 underlying all such
laws);
(v) Each of the Indentures has been duly authorized, executed
and delivered by the Corporation, has been duly qualified under the
1939 Act, as applicable, and constitutes a legal, valid and binding
instrument of the Corporation enforceable against the Corporation in
accordance with its terms, and the Notes have been duly authorized
and, when the terms of the Notes have been established and when the
Notes have been completed, executed, authenticated and delivered in
accordance with the provisions of the applicable Indenture, the
applicable Board Resolutions and this Agreement against payment of
the consideration therefor, will constitute legal, valid and binding
obligations of the Corporation entitled to the benefits of such
Indenture, subject (with respect to each of the Indentures and the
Notes) 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 underlying all such
laws;
(vi) The forms of Note attached to the Secretary's Certificate
delivered to the Agents conform in all material respects to the
description thereof contained in the Prospectus, as supplemented or
amended;
(vii) The Registration Statement has become effective under
the 1933 Act; such counsel is without knowledge that any 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
1934 Act and the respective rules thereunder;
(viii) 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;
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(ix) 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 the
Certificate of Incorporation or the Bylaws of the Corporation, each
as amended to date, or (1) the terms of any material indenture or
other agreement or instrument known to such counsel and to which the
Corporation or the Principal Subsidiary Bank is a party or bound, or
any order or regulation known to such counsel to be applicable to
the Corporation or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Corporation or the Principal
Subsidiary Bank; and
(x) No authorization, order, approval or consent of, or filing
with, any court or governmental authority or agency is necessary or
required on behalf of the Corporation in connection with the sale of
the Notes hereunder, except such as have been obtained under the
1933 Act or the 1933 Act Regulations and such as may be required
under foreign or state securities or insurance laws in connection
with the distribution of the Notes.
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
counsel for the Agents or upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Agents; and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Corporation and the Principal
Subsidiary Bank and public officials.
(1) Opinion of Counsel to the Agents. The opinion of Stroock &
Xxxxxxx & Xxxxx LLP, counsel to the Agents, covering the matters referred
to in subparagraph (1) under the subheadings (iv) through (vii),
inclusive, above.
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 New York or the United States, to the extent deemed proper and
specified in such opinion, upon counsel for the Corporation or upon the
opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Corporation; and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible officers
of the Corporation and the Principal Subsidiary Bank and public officials.
(3) In giving their opinions required by subsections (a)(1) and
(a)(2) of this Section, but without opining in connection therewith, Xxxxx
Xxxxx Mulliss & Xxxxx, L.L.P. and Xxxxxxx & Xxxxxxx & Xxxxx LLP shall each
additionally state that although they have not independently verified, are
not passing upon and assume no responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, such counsel has no reason to believe that the Registration
Statement or any amendment thereof at the time it became effective, or
that the Prospectus, as amended or supplemented, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
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therein, in light of the circumstances under which they were made, not
misleading.
(b) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer or a Senior Vice President
and the Chief Financial or Chief Accounting Officer of the Corporation, dated as
of the date hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this Agreement
and that to the best of their knowledge (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Corporation 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 supplemented or amended, (ii) the other
representations and warranties of the Corporation contained in Section 2 hereof
are true and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) the
Corporation has performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
date of such certificate, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
letter from PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of
the date hereof and in form and substance satisfactory to the Agents, to the
effect that:
(i) They are independent public accountants with respect to the
Corporation and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of the
Corporation 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 Corporation 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 FAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Corporation 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
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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 Corporation
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 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
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 Corporation 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 Corporation 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 shall state any specific changes or
decreases.
(iv) The letter shall also state that PricewaterhouseCoopers 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 Agents and agreed
to by PricewaterhouseCoopers, and has found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Corporation and its subsidiaries
identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date with
respect to any purchase of Notes by an Agent as principal, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
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the fulfillment of any of the conditions, contained herein; and all proceedings
taken by the Corporation in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance to such Agent
and to counsel to the Agents.
If any condition specified in this Section 4 shall not have been fulfilled
in all material respects when and as required to be fulfilled, this Agreement
may be terminated by the Agents by notice to the Corporation at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 3(h) hereof, the provisions concerning payment of expenses under
Section 8 hereof, the indemnity and contribution agreements set forth in Section
7 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 9 hereof and the provisions
regarding parties set forth under Section 13 hereof shall remain in effect.
SECTION 5. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Corporation to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has theretofore paid the
Corporation for such Note, the Corporation will promptly return such funds to
the Agent. If such failure occurred for any reason other than default by the
Agent in the performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Corporation's account. Unless
otherwise agreed between the Corporation and the Agent, all Notes will be issued
in book-entry only form and will be represented by one or more fully registered
global securities.
SECTION 6. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a sale of Notes to such Agent as principal, shall be deemed to be an
affirmation that the representations and warranties of the Corporation contained
in this Agreement and in any certificate theretofore delivered to such Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or his agent,
or to such Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) there is filed
with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
that is incorporated by reference into the Prospectus, or (ii) if required by
the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement
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providing solely for interest rates, maturity dates or other terms of Notes or
similar changes or an amendment or supplement which relates exclusively to an
offering of securities other than the Notes) the Corporation shall furnish or
cause to be furnished to the Agents forthwith a certificate of the Chief
Executive Officer or any Senior Vice President, and the Chief Financial Officer
or the Chief Accounting Officer or Treasurer of the Corporation dated the date
of filing with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form satisfactory to the
Agents to the effect that the statements contained in the certificate referred
to in Section 4(b) hereof which was last furnished to the Agents are true and
correct at the time of such filing, amendment or supplement, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 4(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) there is
filed with the SEC any Annual Report on Form 10-K, (ii) if required by the
Agents, there is filed any Quarterly Report on Form 10-Q, or (iii) if required
by the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for
interest rates, maturity dates or other terms of the Notes or similar changes or
solely for the inclusion of additional financial information or an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes), the Corporation shall furnish or cause to be furnished forthwith to the
Agents and to counsel to the Agents the written opinions of Xxxxx Xxxxx Mulliss
& Xxxxx, L.L.P., counsel to the Corporation, and Xxxx X. Xxxxxxx, General
Counsel to the Corporation, or other counsel satisfactory to the Agents, dated
the date of filing with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form and substance
satisfactory to the Agents, of the same tenor as the opinions referred to in
Section 4(a)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) there is
filed with the SEC any Annual Report on Form 10-K, (ii) if required by the
Agents, there is filed with the SEC any Quarterly Report on Form 10-Q or (iii)
if required by the Agents, the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information required to
be set forth or incorporated by reference into the Prospectus under the terms of
Item 11 of Form S-3 under the 1933 Act, the Corporation shall cause
PricewaterhouseCoopers forthwith to furnish the Agents a letter, dated the date
of effectiveness of such amendment, supplement or document filed with the SEC,
as the case may be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Section 4(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in
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clauses (iii) and (iv) of said Section 4(c) with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Corporation; provided, however, that
if the Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement. If any other
information included therein is of an accounting, financial or statistical
nature, the Agents may request procedures be performed with respect to such
other information. If PricewaterhouseCoopers is willing to perform and report on
the requested procedures, such letter should cover such other information. Any
letter required to be provided by PricewaterhouseCoopers hereunder shall be
provided within 10 business days of the filing of the Annual Report on Form 10-K
or, with respect to any letter required by the Agents pursuant to subparagraph
(ii) or (iii) hereof, the request by the Agents.
SECTION 7. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold harmless each Agent and
each person who controls any Agent 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 any 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 Corporation
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
Corporation by or on behalf of any Agent 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 Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if the
Agent failed to deliver a copy of the Prospectus as amended or supplemented to
such person in connection with the sale of such Notes excluding documents
incorporated therein by reference at or prior to the written confirmation of the
sale of such Notes 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 the Prospectus was corrected in the Prospectus as amended or supplemented.
This indemnity agreement will be in addition to any liability which the
Corporation may otherwise have.
-15-
(b) Each Agent severally agrees to indemnify and hold harmless the
Corporation, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Corporation within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Corporation to each Agent, but only with reference
to written information relating to such Agent furnished to the Corporation by or
on behalf of such Agent 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 Agent may otherwise have. The Corporation
acknowledges that the statements set forth in the last two paragraphs on the
cover page and the last paragraph under the heading "Plan of Distribution" in
the Prospectus, as supplemented or amended, constitute the only information
furnished in writing by or on behalf of the several Agents for inclusion in the
documents referred to in the foregoing indemnity, and you, as the Agents,
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 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 Agent 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 Corporation on the grounds of
-16-
policy or otherwise, the Corporation and the Agents 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 Corporation and one or more of the Agents may be subject in such
proportion so that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent bears to the total sales price from the sale of Notes sold to or
through the Agents to the date of such liability, and the Corporation is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
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 any Agent within the meaning of the 1933 Act shall have the same
rights to contribution as such Agent, and each person who controls the
Corporation within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Corporation who shall have signed the Registration Statement and
each director of the Corporation shall have the same rights to contribution as
the Corporation, subject in each case to the provisions 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).
SECTION 8. Payment of Expenses.
The Corporation will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Corporation's accountants and
counsel, of the Trustees and their counsel, and of any registrar, transfer
agent, paying agent or calculation agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities or insurance
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any
-17-
amendments or supplements thereto, and the delivery by the Agent of the
Prospectus and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproduction and delivery to the Agents of
copies of the Indentures and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of the
Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other identification numbers for
the Notes; and
(n) The fees and expenses of any depository and any nominees thereof in
connection with the Notes.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Corporation submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of any
Agent, or by or on behalf of the Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement
hereunder by an Agent to purchase Notes as principal) may be terminated for any
reason, with respect to one or more, or all, of the Agents, at any time by
either the Corporation or one or more of the Agents upon the giving of 30 days'
written notice of such termination to the other party hereto. Any termination by
the Corporation of this Agreement with respect to one or more, but less than
all, of the Agents shall be effective with respect to such designated Agents
only, and the Agreement will remain in force and effect with respect to any
other Agents who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. An Agent may
terminate any agreement hereunder by such Agent to purchase Notes as principal,
immediately upon notice to the Corporation at any time prior to the Settlement
Date relating thereto, (i) if there has been, since the date of such agreement
or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Corporation and its
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subsidiaries considered as one enterprise, or (ii) if there shall have occurred,
since the date of such agreement, any outbreak or material escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the sole judgment of such Agent, impracticable
to market the Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in securities generally on the New
York Stock Exchange shall have been suspended or limited, or (iv) if, since the
date of such agreement, a banking moratorium shall have been declared by either
Federal or New York authorities.
If, after the date of an agreement hereunder to purchase Notes as
principal and prior to the Settlement Date with respect to such agreement, the
rating assigned by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, or Xxxxx'x Investors Service, Inc., as the case may be,
to any debt securities of the Corporation shall have been lowered or if either
of such rating agencies shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Corporation, then the Corporation and the Agent mutually
shall determine whether the terms of such agreement to purchase Notes shall need
to be renegotiated and, if so, shall so negotiate in good faith the revised
terms of such agreement to purchase Notes. In the event that the Corporation and
the Agent reasonably fail to agree on any such revised terms, then either the
Corporation or the Agent may terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this Section 10, or
following the Settlement Date in connection with a sale to or through an Agent
appointed on a one-time basis, neither party will have any liability to the
other party hereto, except that (i) the Agents shall be entitled to any
commission earned in accordance with Section 1(c) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as principal with
the intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Corporation but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not occurred, the covenants
set forth in Sections 3 and 6 hereof shall remain in effect until such Notes are
so resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 3(h) hereof, the provisions of Section 8 hereof, the indemnity and
contribution agreements set forth in Section 7 hereof, and the provisions of
Sections 9, 12 and 13 hereof shall remain in effect.
SECTION 11. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram. Notices to the Corporation shall be delivered to
it at the address specified below and notices to any Agent shall be delivered to
it at the address set forth on Exhibit A.
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If to the Corporation:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-23-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxx,
Senior Vice President
Telecopy: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxx
General Counsel
Bank of America Corporation
Bank of America Corporate Center
Legal Department, NC1-007-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxx Xxxxx Xxxxxxx & Xxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 11.
SECTION 12. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the parties 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 such State. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Corporation 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 parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 7 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 parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No
-20-
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
-21-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Corporation a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Corporation in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:
----------------------------------------
Name:
Title:
-22-
(Signature Page for Agents)Accepted:
[------------------------]
By:
-----------------------
Name:
Title:
-23-
EXHIBIT A
---------
AGENTS
(Names and Addresses of Agents)
-------------------
-------------------
-------------------
-------------------
Telecopy:
Telephone:
With a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
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EXHIBIT B
---------
The following terms, if applicable, shall be agreed to by an Agent and the
Corporation in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Indexed Note:
Applicable Index for Principal and/or Interest:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Valuation Date:
Reference Price:
Principal Repayment Amount:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
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Other Terms:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
EXHIBIT C
As compensation for the services of an Agent hereunder, the Corporation
shall pay it, on a discount basis, a commission for the sale of each Note by
such Agent which, unless otherwise agreed between the Corporation and Agent,
shall be equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY PRINCIPAL
RANGES AMOUNT
------ ------
From 9 months to less than 1 year.......................
From 1 year to less than 18 months......................
From 18 months to less than 2 years.....................
From 2 years to less than 3 years.......................
From 3 years to less than 4 years.......................
From 4 years to less than 5 years.......................
From 5 years to less than 6 years.......................
From 6 years to less than 7 years.......................
From 7 years to less than 10 years......................
From 10 years to less than 15 years.....................
From 15 years to less than 20 years.....................
From 20 years to 30 years...............................
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The commission for Notes with a maturity more than 30 years or sold to one or
more Agents as principal also is subject to negotiation between the Corporation
and the Agent at the time of sale.
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EXHIBIT D
---------
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term Senior/Subordinated Notes,
Series _, by Bank of America Corporation
Dear __________:
The Master United States Distribution Agreement dated _______ __, ___ (the
"Agreement"), among Bank of America Corporation ("Bank of America") and the
Agents named therein, provides for the issue and sale by Bank of America of its
Medium Term Notes, Series __.
Subject to and in accordance with the terms of the Agreement and accompanying
Administrative Procedures, Bank of America hereby appoints you as Agent (as such
term is defined in the Agreement) in connection with the purchase of the notes
as described in the accompanying Pricing Supplement No. ___, dated ___________,
____, (the "Notes") but only for this one reverse inquiry transaction. Your
appointment is made subject to the terms and conditions applicable to Agents
under the Agreement and terminates upon payment for the Notes or other
termination of this transaction. Accompanying this letter is a copy of the
Agreement, the provisions of which are incorporated herein by reference. 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.
This letter agreement, like the Agreement, is governed by and construed in
accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our agreement, please
sign and return this letter to us on or before settlement date. This action will
confirm your appointment and your acceptance and agreement to act as Agent in
connection with the issue and sale of the above described Notes under the terms
and conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
BANK OF AMERICA CORPORATION [Name of Agent]
By:_____________________ By:_____________________
Name:__________________ Name:___________________
Title:___________________ Title:__________________
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