Exhibit 1.5
BANK OF AMERICA CORPORATION
Medium-Term Notes
Due Nine Months or more from Date of Issue
DISTRIBUTION AGREEMENT
[Date]
To the Agents listed on Exhibit A hereto and to each additional person that
shall become an Agent pursuant to Section 1(f) of this Agreement.
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware 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 the Corporation and The Bank of New York (the "Senior Trustee"), as
trustee, as supplemented by the First Supplemental Indenture dated as of
September 18, 1998 and the Second Supplemental Indenture dated as of May 7, 2001
(the "Senior Indenture"). The Subordinated Notes are to be issued pursuant to an
Indenture dated as of January 1, 1995 between the Corporation and The Bank of
New York (the "Subordinated Trustee"), as trustee, as supplemented by the First
Supplemental Indenture dated as of August 28, 1998 (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."
As of the date hereof, the Corporation has authorized the issuance and
sale of up to $_______ aggregate initial offering price of Notes (or its
equivalent, based upon the exchange rate on the applicable trade date in such
foreign or composite currencies as the Corporation shall designate at the time
of issuance). 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"), pursuant to 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 (which relates to the registration statement in accordance with Rule 429
promulgated under the 1933 Act) 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 also refer to such revised
prospectus from and after the time it is first provided to the Agent for such
use.
All references in this Agreement to financial statements and schedules
and other information which is "disclosed," "contained," "included," or "stated"
(or other references of like import) in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus, as
the case may be, shall be deemed to include the filing of any document under the
1934 Act which is incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
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, and
subject to the reservation by the Corporation of the right to sell Notes
directly on its own behalf, the Corporation hereby appoints each of you as Agent
in connection with the offer and sale of the Notes. 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 Corporation, to use its reasonable
best efforts when requested by the Corporation 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
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Agent shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, by persons solicited by
the Agent 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 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 if any such agency purchase is not
consummated for any reason. 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, 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. If 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-
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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 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 purchased
from the Corporation by one or more Agents as principal shall be purchased, and
any Notes the placement of which an Agent arranges as an agent of the
Corporation 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 or filed solely for the purpose of disclosure under Item 9 thereof)
(each of the times referenced above, including a Settlement Date, 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 been declared
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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) (a) the Registration Statement, as amended or supplemented, the
Prospectus, 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 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
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 inclusion in 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.
(iv) The documents incorporated by reference or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the SEC, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the SEC thereunder and, when read together with the other
information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(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.
(c) Full Force and Effect. All representations, warranties, covenants and
agreements of the Corporation contained in this Agreement or in certificates of
officers of the Corporation
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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 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 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 counsel to the Agents
reasonably object.
(c) Copies of the Registration Statement and the Prospectus and 1934 Act
Filings. The Corporation will deliver to the Agents without charge, as many
signed and conformed copies of (i) the Indentures; (ii) 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) and (iii) a certified copy of the
corporate authorization of the issuance and sale of the Notes 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 SEC pursuant to the 1934 Act as soon as
practicable after the filing thereof.
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(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 substantially the
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, within twenty-four hours
of a release to the general public of interim financial statement information
related to the Corporation with 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 promptly furnish such information to the
Agents, confirmed in writing, and thereafter shall cause promptly 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 promptly such
information to the Agents and thereafter shall cause promptly 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
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thereby, an earnings statement (in form complying with the provisions of Section
11(a) and 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), 6(c) and 6(d) 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 notice 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 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 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 Settlement Date (including the filing of any
document incorporated by reference therein) and as of the Settlement Date, to
the accuracy of the statements of the Corporation made in any certificate
furnished pursuant to the provisions hereof, to the performance by the
Corporation 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.
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(b) 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 Helms Mulliss &
Wicker, PLLC, counsel for the Corporation, to the effect of paragraphs (i)
and (iv) through (xiii) below, and the opinion of Paul J. Polking, General
Counsel to the Corporation (or such other attorney, reasonably acceptable
to counsel to the Agents, who exercises general supervision or review in
connection with a particular securities law matter for the Corporation), to
the effect of paragraphs (ii) and (iii) below:
(i) The Corporation 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 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 Corporation 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 Corporation or
the Principal Subsidiary Bank, as the case may be, is required to be so
qualified or licensed.
(iii) All the outstanding shares of capital stock of the Principal
Subsidiary Bank have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. ss.55, as amended)
nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Principal Subsidiary Bank
(except directors' qualifying shares) are owned, directly or indirectly, by
the Corporation free and clear of any perfected security interest and such
counsel is without knowledge of 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 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.
(v) Each of the Indentures has been duly authorized, executed and
delivered by the Corporation, has been duly qualified under the 1939 Act,
and constitutes a legal, valid and binding instrument of the Corporation
enforceable against the Corporation in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors
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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;
(vi) 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 and enforceable against the Corporation in
accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or hereafter in effect,
and to equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.ss.1818(b)(6)(D)
and similar bank regulatory powers and to the application of principles of
public policy.
(vii) The Registration Statement has become effective under the 1933
Act; no stop order suspending the effectiveness of the Registration
Statement has been issued and, to such counsel's knowledge, no proceeding
for that purpose has been instituted or threatened; and 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, the
1934 Act, the 1939 Act and the respective rules and regulations of the SEC
thereunder.
(viii) The forms of Note attached to the Secretary's Certificate
delivered to the Agents conform in all material respects to the
descriptions thereof contained in the Prospectus.
(ix) Each of the Indentures conforms in all material respects to the
description thereof contained in the Prospectus.
(x) 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
Corporation or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement or the Prospectus, which is omitted
or not adequately disclosed therein, or (2) any franchise, contract or
other document of a character required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit to the
Registration Statement, is not so described or filed as required.
(xi) Neither the issuance and sale of the Notes, nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach of, or constitute a
default under the Certificate of Incorporation or the Bylaws of the
Corporation, or (1) the terms of any indenture or other material agreement
or instrument known to such counsel and to which the Corporation or
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the Principal Subsidiary Bank is a party or bound, or (2) any order, law 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.
(xii) No consent, approval, authorization or order of any court or
governmental agency or body is necessary or required on behalf of the
Corporation for the consummation of the transactions contemplated herein,
except such as have been obtained under the 1933 Act and such as may be
required under foreign or state securities or insurance laws in connection
with the purchase and distribution of the Notes.
(xiii) Such counsel is without knowledge of any rights to the
registration of securities of the Corporation 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
Corporation's intention to file the Registration Statement.
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, the United States or the General Corporation Law of the State 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 its subsidiaries and public
officials.
In rendering such opinion, but without opining in connection therewith,
such counsel shall state that, although it expresses no view as to portions of
the Registration Statement consisting of financial statements and other
financial, accounting and statistical information and 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 or Prospectus or any amendment or supplement thereto (other than as
stated in (viii) and (ix) above), it has no reason to believe that such
remaining portions of the Registration Statement or any amendment thereto at the
time it became effective and as of the date of such opinion 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 therein not
misleading or that, subject to the foregoing with respect to financial
statements and other financial, accounting and statistical information, the
Prospectus, as amended or supplemented, as of its date and as of the date of
such opinion contained or contains 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 therein, in light of the circumstances under which
they were made, not misleading.
(2) Opinion of Counsel to the Agents. The opinion of Stroock & Stroock
& Lavan 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, the United States or the General Corporation Law of the State of
Delaware, to the extent deemed proper and specified in
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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 its
subsidiaries and public officials.
In rendering such opinion, but without opining in connection therewith,
such counsel shall state that while it has not verified, is not passing upon and
assumes no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus or any
amendment or supplement thereto (other than as stated in (viii) above), it has
participated in reviews and discussions in connection with the preparation of
the Registration Statement and Prospectus (the documents incorporated by
reference having been prepared and filed by the Corporation without its
participation), and in the course of such reviews and discussions, nothing has
come to its attention which would lead it to believe that the Registration
Statement at the time it became effective and as of the date hereof (except for
the financial statements, schedules and the notes thereto and the other
financial and statistical data included or incorporated by reference therein, as
to which it expresses no belief) 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 therein not misleading or that the
Prospectus, as amended or supplemented, as of its date and as of the date of
such opinion (except for the financial statements, schedules and the notes
thereto and the other financial and statistical data included or incorporated by
reference therein, as to which it expresses no belief) contained or contains 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
therein, in light of the circumstances under which they were made, not
misleading.
(c) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chairman of the Board, Chief Executive Officer or
a Senior Vice President, and the principal financial or 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 they are without knowledge that (i) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has been any material adverse change or any
development involving a prospective material adverse change in the condition
(financial or other), earnings, business or properties of the Corporation and
its subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Prospectus,
(ii) the representations and warranties of the Corporation contained in Section
2 hereof are not true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Corporation
has not performed or complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to the
date of such certificate, and (iv) any stop order suspending the effectiveness
of the Registration Statement has been issued or any proceedings for that
purpose have been instituted or threatened by the SEC, (v) no litigation or
proceeding shall be pending to restrain or enjoin the issuance or delivery of
the Notes, or which in any way affects the validity of the Notes.
(d) 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:
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(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 Statement of Accounting Standards 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 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
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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.
(4) 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.
(e) 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 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.
(f) There shall not have come to the Agent's attention any facts that would
cause such Agent to believe that the Prospectus, at the time it was required to
be delivered to a purchaser of the Notes, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
If any condition specified in this Section 4 shall not have been fulfilled
in all material respects when and as required 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 Agents and their counsel, this Agreement and all obligations of
the Agents 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
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the covenant regarding provision of an earnings statement set forth in Section
3(h) hereof, the indemnity and contribution agreements set forth in Section 7
hereof, the provisions concerning payment of expenses under Section 8 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 (i) the Corporation
files with the SEC any Annual Report on Form 10-K or Quarterly Report on Form
10-Q that is incorporated by reference into the Prospectus or (ii) if required
by the Agents, the Registration Statement or the Prospectus has been amended or
supplemented (other than by an amendment or supplement 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 Chairman of the Board, Chief Executive
Officer or Senior Vice President, and the principal financial officer or
accounting officer 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(c) hereof which
was last furnished to the Agents are true and correct at the
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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 (i) the Corporation
files with the SEC any Annual Report on Form 10-K; (ii) if required by the
Agents, the Corporation files with the SEC any Quarterly Report on Form 10-Q or
(iii) if required by the Agents, the Registration Statement or the Prospectus
has been 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 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 Helms Mulliss & Wicker, PLLC, counsel to the Corporation,
and Paul J. Polking, General Counsel to the Corporation (or such other attorney,
reasonably acceptable to counsel to the Agents, who exercises general
supervision or review in connection with a particular securities law matter for
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 and substance satisfactory to the Agents, of the same tenor as the opinions
referred to in Section 4(b)(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 (i) the Corporation
files with the SEC any Annual Report on Form 10-K; (ii) if required by the
Agents, the Corporation files with the SEC any Quarterly Report on Form 10-Q or
(iii) if required by the Agents, the Registration Statement or the Prospectus
has been 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(d)
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 clauses (iii) and (iv) of
said Section 4(d) 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
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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 inclusion in the
Registration Statement or Prospectus or any amendment or supplement 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.
(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
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written information relating to such Agent furnished to the Corporation by or on
behalf of such Agent specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereof. This indemnity agreement will
be in addition to any liability which any Agent may otherwise have. The
Corporation acknowledges that (i) the names of the Agents and the statements in
the Prospectus required by Item 508 of Regulation S-K set forth in the language
on the cover page or under the heading "Plan of Distribution," (ii) the
sentences relating to concessions and reallowances, and (iii) the paragraph
related to stabilization and syndicate covering transactions in the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Agents for inclusion in the Registration Statement or Prospectus or any
amendment or supplement thereto, 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 (in addition to local 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
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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. However, if the allocation provided by the
foregoing sentence is not permitted by applicable law, the Company 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 Company and one or more of the
Agents may be subject in such proportion to reflect the relative fault of the
Company on the one hand and the Agents on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Agent, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Agents agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the Agents were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (d). Notwithstanding anything to the contrary contained
herein, (i) in no case shall an Agent be responsible for any amount in excess of
the commissions and underwriting discounts received by such Agent in connection
with the Notes from which such losses, liabilities, claims, damages and expenses
arise and (ii) 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 as originally
filed and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
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(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes, to the
Agents, including capital duties, stamp duties and transfer taxes, if any,
payable upon issuance of any of the Notes, the sale of the Notes to the Agents
and the fees and expenses of any transfer agent or trustee for the Notes;
(d) The fees and expenses of counsel to any such transfer agent or trustee;
(e) 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;
(f) The reasonable fees and disbursements of counsel to the Agents incurred
from time to time in connection with the transactions contemplated hereby;
(g) 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, printing,
reproduction and delivery of any Blue Sky Survey;
(h) 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 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;
(i) The preparation, printing, reproduction and delivery to the Agents of
copies of the Indentures and all supplements and amendments thereto;
(j) Any fees charged by rating agencies for the rating of the Notes;
(k) With piror Company approval, the fees and expenses incurred in
connection with the listing of the Notes on any securities exchange;
(l) The fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(m) Any advertising and other out-of-pocket expenses of the Agents incurred
with the approval of the Corporation; 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
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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 from the Corporation 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, if (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) there has been, since the date of such
agreement, any material adverse change or any development involving a
prospective material adverse change in the condition (financial or other),
earnings, business or properties of the Corporation and its subsidiaries 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, (iii) a banking moratorium or a material disruption in the commercial
banking or securities settlement or clearance services in the United States
shall have been declared by Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis (in the United States or elsewhere) the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of such Agent, impracticable to market the Notes or enforce contracts
for the sale of the Notes.
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 McGraw-Hill
Companies, Inc. or Moody's 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
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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.
If to the Corporation:
Bank of America Corporation
Corp. Treas. Div. NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell
Senior Vice President
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
Bank of America Corporation
Legal Department, NC1-007-56-11
100 North Tryon Street
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Helms Mulliss & Wicker, PLLC
201 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 343-2300
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. 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
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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 purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. 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, notwithstanding
any otherwise applicable conflicts of law principles. This Agreement may be
executed in counterparts and the executed counterparts shall together constitute
a single instrument.
SECTION 14. Effect of Headings
The section and sub-section headings herein are for convenience only and
shall not affect the construction hereof.
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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:
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Accepted:
BANC OF AMERICA SECURITIES LLC
By:
------------------------------
Name:
Title:
[DEALERS]
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EXHIBIT A
AGENTS
Banc of America Securities LLC
100 North Tryon Street
7th Floor, NC1-007-07-01
Charlotte, North Carolina 28255-0065
Telecopy: (704) 388-9982
Telephone: (704) 388-8856
[DEALERS]
With a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
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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:
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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 ................................. .125%
From 1 year to less than 18 months ................................ .150
From 18 months to less than 2 years ............................... .200
From 2 years to less than 3 years ................................. .250
From 3 years to less than 4 years ................................. .350
From 4 years to less than 5 years ................................. .450
From 5 years to less than 6 years ................................. .500
From 6 years to less than 7 years ................................. .550
From 7 years to less than 10 years ................................ .600
From 10 years to less than 15 years ............................... .625
From 15 years to less than 20 years ............................... .700
From 20 years to 30 years ......................................... .750
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 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, Banc of America Securities LLC 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
___________, 200__, (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, notwithstanding any otherwise
applicable conflicts of law principles.
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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