|
Exhibit 1.1
BANK OF AMERICA
CORPORATION
Medium-Term Notes, Series
L
Due Three Months or More from
Date of Issue
DISTRIBUTION
AGREEMENT
April 10,
2008
To the Selling Agents listed
on
Exhibit A hereto and to
each additional person
that shall become a Selling
Agent
pursuant to Section 1(f)
of this Agreement.
Dear Ladies and Gentlemen:
Bank of America Corporation,
a Delaware corporation (the “Company”), 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
L (the “Senior Notes”) and its Subordinated Medium-Term
Notes, Series L (the “Subordinated Notes,” and together
with the Senior Notes, the “Notes”). The Senior Notes
will be issued pursuant to an Indenture dated as of January 1,
1995 between the Company and The Bank of New York Trust Company,
N.A., as successor trustee (the “Senior Trustee”), as
supplemented by the First Supplemental Indenture dated as of
September 18, 1998, the Second Supplemental Indenture dated as
of May 7, 2001, the Third Supplemental Indenture dated as of
July 28, 2004, and the Fourth Supplemental Indenture dated as
of April 28, 2006 (collectively, the “Senior
Indenture”). The Subordinated Notes will be issued pursuant
to an Indenture dated as of January 1, 1995 between the
Company and The Bank of New York Trust Company, N.A., as successor
trustee (the “Subordinated Trustee”), as supplemented
by the First Supplemental Indenture dated as of August 28,
1998 and the Second Supplemental Indenture dated as of
January 25, 2007 (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, and the rules and regulations thereunder (the
“Securities Act”), on Form S-3 with the Securities and
Exchange Commission (the “Commission”), pursuant to
Registration No. 333-133852. The registration statement became
automatically effective upon filing with the Commission, and the
Indentures have been qualified under the Trust Indenture Act of
1939, as amended, and the rules and regulations thereunder (the
“Trust Indenture Act”). Such registration statement, as
amended, including the financial statements, exhibits and schedules
thereto, including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430B under
the Securities Act or pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (the
“Exchange Act”), at each time of effectiveness, is
called the “Registration Statement.” The term
“Base Prospectus” shall refer to the prospectus for the
Company’s debt securities and other securities filed as part
of the Registration Statement for the offering of the Notes,
together with the medium-term notes prospectus
supplement dated April 10, 2008, or
any amendment thereto, but not including any Pricing Supplement (as
defined below), any product supplement, any preliminary pricing
supplement or any free writing prospectus (as such term is used in
Rule 405 under the Securities Act). The term
“Prospectus” shall refer to the Base Prospectus,
together with the applicable Pricing Supplement and any applicable
product supplement. Any preliminary pricing supplement to the Base
Prospectus that describes an issuance of the Notes and the offering
thereof and that is used prior to filing of the Prospectus is
called, together with the Base Prospectus, a “preliminary
pricing supplement.”
Any reference herein to the
Registration Statement, any preliminary pricing supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act; any reference to any amendment or
supplement to any preliminary pricing supplement or the Prospectus
shall be deemed to refer to and include any documents filed after
the date of such preliminary pricing supplement or Prospectus, as
the case may be, under the Exchange Act, and incorporated by
reference in such preliminary pricing supplement or Prospectus, as
the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement. All references in this Agreement to the
Registration Statement, a preliminary pricing supplement, the
Prospectus or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“EDGAR”).
The Company confirms its
agreement with each of you (individually, a “Selling
Agent” and collectively, the “Selling Agents”)
with respect to the issue and sale from time to time by the Company
of the Notes as follows:
SECTION 1. Appointment of Selling
Agents .
(a) Appointment .
Subject to the terms and conditions stated herein, and subject to
the reservation by the Company of the right to sell Notes directly
on its own behalf, the Company hereby appoints each of you as a
Selling Agent in connection with the offer and sale of the Notes.
The Company 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 Selling Agent named
herein shall be entitled to any commission pursuant to this
Agreement.
(b) Solicitations as
Selling Agent . (i) Subject to the terms and conditions
set forth herein, each Selling 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 Selling Agents and the Company (the
“Procedures”). The initial Procedures dated as of
April 10, 2008 and set forth in Annex I to this
Agreement shall remain in effect until changed in an amendment
signed by the Selling Agents and the Company. The Selling Agents
and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures. Notwithstanding any
-2-
provision herein to the contrary, the
Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Selling Agents,
as agents, commencing at any time for any period of time or
permanently. The Company will timely deliver notice to the Selling
Agents of its decision to suspend solicitations. Upon receipt of
instructions from the Company, the Selling Agents will forthwith
suspend solicitation of purchases of the Notes until such time as
the Company has advised the Selling Agents that such solicitation
may be resumed.
(ii) Each Selling Agent will
communicate to the Company, orally, each offer to purchase Notes
solicited by such Selling Agent on an agency basis, other than
those offers rejected by the Selling Agent. Each Selling Agent
shall have the right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes, in whole or in part, by
persons solicited by the Selling Agent and any such rejection shall
not be deemed a breach of such Selling Agent’s agreement
contained herein. The Company 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 Company’s agreement
herein.
(iii) All Notes sold through
a Selling Agent, as agent, will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and such Selling
Agent. The principal amount of Notes to be purchased by such
Selling Agent, the maturity date of such Notes, the price to be
paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms
of such Notes specified in Exhibit B hereto shall be agreed
upon by the Company and such Selling Agent (each such agreement, a
“Terms Agreement”) and set forth in a pricing
supplement to the Base Prospectus (a “Pricing
Supplement”) to be prepared following each acceptance by the
Company of an offer for the purchase of Notes. A Pricing Supplement
may include one or more product supplements that may be filed by
the Company under Rule 424(b) under the Securities Act on or after
the date of this Agreement. The applicable product supplement or
product supplements shall be deemed to be part of the applicable
Pricing Supplement for purposes of this Agreement.
(iv) Each Selling Agent shall
use its reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has
been solicited by such Selling Agent and accepted by the Company.
Each Selling Agent shall not have any liability to the Company if
any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a
purchaser whose offer it has accepted, the Company shall
(A) hold the Selling Agent for such purchase harmless against
any loss, claim or damage arising from or as a result of such
default by the Company and (B) notwithstanding such default,
pay to such Selling Agent any commission to which it would be
entitled in connection with such sale.
(c) Commissions . For
those offers to purchase Notes solicited by a Selling Agent and
accepted by the Company, the Selling Agent shall be paid a
commission to be agreed between the Company and the Selling Agent.
In the absence of such an agreement, such commission shall be an
amount equal to the applicable percentage of the principal amount
of each series of Notes sold by the Company as a result of a
solicitation made by such Selling Agent as set forth in Exhibit
C hereto.
-3-
(d) Purchases as
Principal .
(i) The Selling Agents shall
not have any obligation to purchase Notes from the Company as
principal. However, a Selling Agent and the Company may expressly
agree from time to time that such Selling Agent shall purchase
Notes as principal. Unless otherwise agreed between the Company and
the Selling Agent and, if required by law or otherwise, disclosed
in a Pricing Supplement, each series of Notes sold to a Selling
Agent as principal shall be purchased by such Selling 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 Selling Agent at prevailing
market prices at the time or times of resale as determined by such
Selling Agent.
(ii) A Selling 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 Company herein contained and shall be subject to
the terms and conditions set forth herein, including
Section 11(b) hereof. When a Selling Agent and the Company
agree that such Selling Agent shall purchase Notes as principal,
that agreement shall take the form of (A) a written agreement
between such Selling Agent and the Company, which may be
substantially in the form of Exhibit D hereto (a
“Written Terms Agreement”) or (B) an oral
agreement between such Selling Agent and the Company confirmed in
writing by such Selling Agent to the Company.
(iii) Each Written Terms
Agreement shall specify the principal amount of Notes to be
purchased by such Selling Agent pursuant thereto, the maturity date
of such Notes, the price to be paid to the Company for such Notes,
the interest rate and interest rate formula, if any, applicable to
such Notes, selling restrictions and any other terms of such Notes.
Each such Written Terms Agreement may also specify any requirements
for officers’ certificates, opinions of counsel and letters
from the independent public registered accounting firm of the
Company pursuant to Section 4 hereof. A Written Terms
Agreement also may specify certain provisions relating to the
reoffering of such Notes by such Selling Agent.
(e) Sub-Agents . A
Selling Agent may engage the services of any other broker or dealer
in connection with the resale of any Notes purchased as principal,
but no Selling Agent may appoint sub-agents without the prior
consent of the Company. In connection with sales by a Selling Agent
of Notes purchased by such Selling Agent as principal to other
brokers or dealers, such Selling Agent may allow any portion of the
discount received in connection with such purchases from the
Company to such brokers and dealers.
(f) Appointment of
Additional Selling Agents . Notwithstanding any provision
herein to the contrary, the Company reserves the right to appoint
additional selling agents for the offer and sale of the Notes,
which agency may be on an on-going basis or on a one-time basis.
Any such additional selling 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 (but not limited to) the form of
letter attached hereto as Exhibit E , and delivery to the
Company of addresses for notice hereunder and under the Procedures.
After the time an additional selling agent is appointed,
-4-
the Company shall deliver to the
additional selling agent, at such selling agent’s request,
copies of the documents delivered to other Selling Agents under
Sections 4(b), 4(c), 4(d) and 4(e) 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 Company will notify the
other active Selling Agents of such appointment.
(g) Selling
Restrictions . Each Selling Agent, severally and not jointly,
agrees that:
(i) it has not and will not
offer, sell or deliver any of the Notes, directly or indirectly, or
distribute the Prospectus or any other offering materials
(including any Issuer Free Writing Prospectus (as defined below) or
other free writing prospectuses) relating to the Notes in any
jurisdiction except under circumstances that will result in
compliance with applicable laws and regulations and that will not
impose any obligations on the Company except as set forth herein;
and
(ii) it will comply in all
material respects with (A) the selling restrictions set forth
in the Base Prospectus under the caption “Supplemental Plan
of Distribution—Selling Restrictions” and (B) any
additional selling restrictions set forth in the applicable Pricing
Supplement.
SECTION 2. Representations and
Warranties .
(a) The Company represents
and warrants to the Selling Agents as of the date hereof, as of the
time of each Terms Agreement or Written Terms Agreement, as
applicable, and each acceptance (the “Time of
Acceptance”) by the Company of an offer for the purchase of
Notes (whether through a Selling Agent as agent or to a Selling
Agent as principal), as of the date of each delivery of Notes
(whether through a Selling Agent as agent or to a Selling Agent as
principal) (the date of each such delivery to a Selling Agent being
hereafter referred to as a “Settlement Date”), and as
of any time that the Registration Statement, the Base Prospectus or
any Pricing Supplement shall be amended or supplemented or there is
filed with the Commission 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 furnished solely for the purpose of
disclosure under Item 2.02 or Item 7.01 thereof) (each of
the times referenced above, including a Settlement Date, being
referred to herein as a “Representation Date”) as
follows:
(i) The Company meets the
requirements for use of Form S-3 under the Securities Act and has
prepared and filed with the Commission the Registration Statement,
which became automatically effective upon filing with the
Commission. The Registration Statement meets the requirements of
Rule 415(a)(1) under the Securities Act and complies in all other
material respects with such Rule 415(a)(1).
(ii) (A) At the time of
filing the Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (C) at the time the Company or any person acting
on its behalf (within the meaning, for this clause only,
of
-5-
Rule 163(c) under the Securities
Act) made any offer relating to any Notes issued hereunder in
reliance on the exemption of Rule 163 under the Securities
Act, and (D) at the applicable Time of Acceptance (with
such time being used as the determination time for purposes of this
clause (D)), the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 under the Securities Act.
The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 under
the Securities Act; the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) under the
Securities Act objecting to use of the automatic shelf registration
statement form and the Company has not otherwise ceased to be
eligible to use the automatic shelf registration statement
form.
(iii) At the earliest time
after the Company or any Selling Agent makes a bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities
Act) with respect to any Notes hereunder, as of the date of each
Terms Agreement or Written Terms Agreement, as applicable, and as
of the date hereof, the Company is not and will not be an
Ineligible Issuer (as defined in Rule 405 under the Securities
Act).
(iv) (A) the
Registration Statement, as amended or supplemented, the Prospectus,
and the applicable Indenture complied, complies or will comply in
all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act,
(B) the Registration Statement, as amended as of any such
time, did not, does not and 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, did not, does not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (I) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture
Act or (II) 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 Company by or on behalf of any Selling Agent
specifically for inclusion in the Registration Statement and the
Prospectus, it being understood and agreed that the only such
information furnished to the Company by or on behalf of any Selling
Agent consists of the information described as such in
Section 7(b) hereof (the “Selling Agent
Information”).
(v) As of the Initial Sale
Time with respect to each offering of Notes, the Disclosure Package
(as defined below), taken as a whole, will comply in all material
respects with the requirements under the Securities Act and the
Exchange Act and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with the Selling Agent
Information. “Initial Sale Time” means, with respect to
each offering of Notes, the time after the Time of Acceptance as to
such Notes and immediately prior to a Selling Agent’s initial
entry into contracts with investors for the sale of such Notes,
which such times shall be recorded by the Selling Agent and
furnished to the Company, and deemed to be part of the applicable
Terms Agreement or Written Terms Agreement. The term
“Disclosure Package” shall mean, as to any offering of
Notes, collectively,
-6-
(A) the Base Prospectus,
(B) any preliminary pricing supplement, as amended or
supplemented, (C) any applicable product supplement filed with
the Commission prior to the Initial Sale Time, (D) the issuer
free writing prospectuses as defined in Rule 433 under the
Securities Act (including, if applicable, any Final Term Sheet (as
defined herein)) (each, an “Issuer Free Writing
Prospectus”), if any, used in connection with such offering
and (E) any other free writing prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part
of the Disclosure Package.
(vi) No Issuer Free Writing
Prospectus (including any Final Term Sheet), with respect to each
offering of Notes, as of its issue date and at all subsequent times
through the completion of such offering of Notes or until any
earlier date that the Company notified or notifies the Selling
Agents as described in the next sentence, includes or will include
any information that conflicts or will conflict with the
information contained in the Registration Statement, including any
document incorporated by reference therein, the Base Prospectus,
any preliminary pricing supplement or any Pricing Supplement that
has not been superseded or modified. If at any time following
delivery of an Issuer Free Writing Prospectus and until the end of
the applicable Prospectus Delivery Period (as defined below), there
occurs an event or development as a result of which such Issuer
Free Writing Prospectus would conflict with the information
contained in the Registration Statement, the Base Prospectus, any
preliminary pricing supplement or any Pricing Supplement, the
Company will promptly notify the Selling Agents and will promptly
amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two
sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with
the Selling Agent Information. The term “Prospectus Delivery
Period” shall mean, as to any offering of Notes, the period
beginning at the Initial Sale Time and ending on the later of the
applicable Settlement Date or such date, as in the opinion of
counsel for the Selling Agents, the Prospectus is no longer
required to be delivered in connection with sales by a Selling
Agent or dealer (except for delivery requirements imposed because
such Selling Agent or dealer is an affiliate of the Company),
including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act.
(vii) The documents
incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
Exchange Act and, when read together with the other information in
the Prospectus and the Disclosure Package, at the date hereof, at
the date of the Base Prospectus and at each Representation Date,
did not and will not include any 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.
(viii) The Commission has not
issued any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the
use of the preliminary pricing supplement or the Prospectus, and
the Company is without knowledge that any proceedings have been
instituted for either purpose.
(ix) This Agreement (and any
applicable Written Terms Agreement) has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution, and delivery by you (or, in the case of a
Written Terms Agreement, the applicable Selling Agents),
constitutes a legal, valid and binding agreement of the Company
enforceable
-7-
against the Company 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. §1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public
policy.
(x) Each Indenture has been
duly authorized, executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery by the applicable Trustee,
constitutes a legal, valid, and binding instrument of the Company
enforceable against the Company 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 further subject to 12 U.S.C.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy; as of the time any
Notes are issued and sold hereunder (and under any applicable Terms
Agreement), the Notes will have been duly authorized and, when,
completed, executed and authenticated in accordance with the
provisions of the applicable Indenture and delivered to and paid
for by the Selling Agents pursuant to this Agreement (and any
applicable Written Terms Agreement), will constitute legal, valid
and binding obligations of the Company entitled to the benefits of
the applicable Indenture and enforceable against the Company 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. §1818(b)(6)(D) and similar bank regulatory powers
and to the application of principles of public policy.
(xi) The Company has not
distributed and will not distribute, prior to the later of the
Settlement Date and the completion of the Selling Agents’
distribution of any Notes issued hereunder, any offering material
in connection with the offering and sale of those Notes other than
the Base Prospectus, any preliminary pricing supplement, the
Pricing Supplement, and any Issuer Free Writing Prospectus reviewed
and consented to by the applicable Selling Agents.
(xii) The Company 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 Company and delivered to a Selling Agent or to
counsel for such Selling Agent in connection with an offering of
Notes or the sale of Notes to a Selling Agent as principal shall be
deemed a
-8-
representation and warranty by the
Company to such Selling 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
Company .
The Company covenants with
the Selling Agents as follows:
(a) Notice of Certain
Events . The Company will notify the Selling Agents immediately
of (i) the filing or effectiveness of any amendment to the
Registration Statement, (ii) the filing of any supplement to
the Base Prospectus (including any Issuer Free Writing Prospectus)
or any document to be filed pursuant to the Exchange Act, which
will be incorporated by reference in the Prospectus (other than
documents available via EDGAR), (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any Disclosure Package (other than
with respect to a document filed with the Commission pursuant to
the Exchange Act which will be incorporated by reference in the
Registration Statement, the Base Prospectus and the Prospectus),
(iv) any request by the Commission for any amendment to the
Registration Statement, any amendment or supplement to the
Prospectus or any Disclosure Package or for additional information
relating thereto (other than such a request with respect to a
document filed with the Commission pursuant to the Exchange Act,
which will be incorporated by reference in the Registration
Statement, the Base Prospectus and the Prospectus), and
(v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company 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 Company will give the Selling 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 or the Disclosure
Package (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 Commission pursuant to the Exchange
Act) and, upon request, will furnish the Selling Agents with copies
of any such registration statement, 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, amendment or supplement
in a form as to which the Selling Agents or counsel to the Selling
Agents reasonably object.
(c) Copies of the
Registration Statement and the Prospectus and Exchange Act
Filings . The Company will deliver to the Selling 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 Selling Agents may reasonably request. The
Company will furnish to the Selling Agents as many copies of the
Base Prospectus, any preliminary pricing supplement and the
Prospectus (each as amended or supplemented) or any Issuer Free
Writing Prospectus as the Selling Agents shall reasonably request
so long as the Selling Agents are required to deliver a Prospectus
in connection with sales or solicitations of
-9-
offers to purchase the Notes under the
Securities Act. Upon request, the Company will furnish to the
Selling 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 Company with the Commission pursuant to the Exchange Act as
soon as practicable after the filing thereof, if such documents are
not then publicly available on a website or other electronic system
maintained by the Commission.
(d) Preparation of Pricing
Supplements . The Company will prepare, with respect to any
Notes to be sold through or to a Selling Agent pursuant to this
Agreement (and any applicable Written Terms Agreement), a Pricing
Supplement with respect to such Notes in substantially the form
previously approved by the Selling Agents and will file such
Pricing Supplement with the Commission pursuant to Rule 424(b)
under the Securities Act not later than the close of business on
the second business day following the earlier of the date of the
determination of the offering price for the applicable Notes or the
date on which such Pricing Supplement is first used. If a Selling
Agent has advised the Company in writing that such Selling Agent is
relying, in connection with any offering of Notes, upon the
exemption from Section 5(b) of the Securities Act set forth in
Rule 172 under the Securities Act, and the Company is unable to
file the applicable Pricing Supplement within the time period
specified in the previous sentence, the Company shall file such
Pricing Supplement as soon as practicable thereafter, to the extent
permitted by Rule 172(c)(3) under the Securities Act.
(e) Revisions of
Prospectus — Material Changes . Except as otherwise
provided in subsection (o) of this Section 3, 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 Selling Agents or counsel for
the Company, to further amend or supplement the Prospectus or any
Disclosure Package in order that the Prospectus or such Disclosure
Package will not include any 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
then existing, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the
Registration Statement, the Prospectus or any Disclosure Package in
order to comply with the requirements of the Securities Act or the
Exchange Act, immediate notice shall be given, and confirmed in
writing, to each Selling Agent to cease the solicitation of offers
to purchase the applicable Notes in the Selling Agent’s
capacity as agent (and, if so notified, such Selling Agent shall
promptly cease such solicitation) and to cease sales of any such
Notes the Selling Agent may then own as principal, and the Company
will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the Exchange
Act, the Securities Act or otherwise (including, if consented to by
the Selling Agents, by means of an Issuer Free Writing Prospectus),
as may be necessary to correct such untrue statement or omission or
to make the Registration Statement, the Prospectus or the
applicable Disclosure Package comply with such
requirements.
(f) Final Term Sheet .
Unless otherwise requested by the applicable Selling Agents, with
respect to each offering of Notes hereunder, the Company will
prepare a final term sheet containing only a description of such
Notes, in a form approved by the applicable Selling Agents, and
will file such term sheet pursuant to Rule 433(d) under the
Securities Act within the time required by such rule (each such
term sheet, a “Final Term Sheet”). The form of such
Final Term Sheet may be set forth as an exhibit or an annex to a
Written Terms Agreement. The covenant in this paragraph shall apply
to “indexed notes” (as such term is used in the
Prospectus) only if the
-10-
applicable Selling Agent or Selling
Agents so advise the Company at or prior to the relevant Initial
Sale Time.
(g) Permitted Free Writing
Prospectuses . (i) The Company represents and agrees that
it has not made, and unless it obtains the prior written consent of
the applicable Selling Agents, it will not make, and each Selling
Agent represents and agrees that it has not made, and unless it
obtains the prior written consent of the Company, it will not make,
any offer relating to the Notes that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405 under
the Securities Act) required to be filed with the Commission or
retained under Rule 433 under the Securities Act; provided that the
prior written consent of the Selling Agents shall be deemed to have
been given in respect of each Issuer Free Writing Prospectus in the
form of Exhibit A-2 to the form of Written Terms Agreement which is
attached hereto, when issued in accordance with the terms of the
applicable Written Terms Agreement. Any such free writing
prospectus consented to by the Company and the applicable Selling
Agent or Selling Agents is hereinafter referred to as a
“Permitted Free Writing Prospectus.” Unless otherwise
agreed by the Company and the applicable Selling Agents, the
Company (A) has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (B) has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 under the
Securities Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use
by any Selling Agent of a free writing prospectus that (1) is
not an “issuer free writing prospectus” as defined in
such Rule 433, and (2) contains only (X) information
describing the preliminary terms of the Notes or their offering,
(Y) information permitted by Rule 134 under the
Securities Act or (Z) information that describes the final
terms of the Notes or their offering and that is included in the
Final Term Sheet of the Company contemplated in Section 3(f)
of this Agreement. In addition, a Selling Agent may use and
distribute a road show (as defined in such Rule 433) prepared or
recorded with the Company, unless (1) the Company reasonably
requests otherwise in writing and (2) the Company otherwise
ceases its own use or replay of such road show. The prior sentence
shall not limit any of the Company’s obligations under
paragraph (e) above.
(ii) The Company and each
Selling Agent acknowledge that the parties hereto may formulate
from time to time written policies governing free writing
prospectuses that vary and differ from the provisions of this
Section 3(g). Such written policies may be applicable to one
or more issuances of Notes, and may relate to, without limitation,
(A) the obligations of the Company and the Selling Agents for
filing free writing prospectuses with the Commission,
(B) procedures for the preparation, review and use of free
writing prospectuses, (C) the Selling Agent’s
preparation and distribution of free writing prospectuses that are
not subject to the filing requirements of Rule 433(d)(1)(ii) under
the Securities Act (a “Selling Agent Represented Limited-Use
Free Writing Prospectus”), (D) whether the use of any
free writing prospectus shall be conditioned upon the delivery of a
legal opinion from counsel to the Company and/or the Selling Agents
and (E) any other related matters as the Company may agree
from time with one or more of the Selling Agents.
(h) Use of Proceeds .
The Company shall apply the net proceeds from the sale of the Notes
sold by it in the manner described under the caption “Use of
Proceeds” in each of the Prospectus and the applicable
Disclosure Package.
-11-
(i) Prospectus Revisions
— Periodic Financial Information . Except as otherwise
provided in subsection (o) of this Section 3, within
twenty-four hours of a release to the general public of interim
financial statement information related to the Company 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 Company shall promptly furnish such information to
the Selling Agents (if the documents containing such information
are not then publicly available on a website or other electronic
system maintained by the Commission).
(j) Prospectus Revisions
— Audited Financial Information . Except as otherwise
provided in subsection (o) of this Section 3, 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 Company for the preceding fiscal year,
the Company shall furnish promptly such information to the Selling
Agents (if the documents containing such information are not then
publicly available on a website or other electronic system
maintained by the Commission).
(k) Earnings
Statements . Unless otherwise provided in the applicable
Written Terms Agreement, the Company 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
Section 11(a) of the Securities Act and Rule 158 under the
Securities Act) covering each twelve-month period beginning, in
each case, not later than the first day of the Company’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.
(l) Blue Sky
Qualification . The Company will endeavor, in cooperation with
the Selling 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 Selling 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 Company 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 Company 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 Company will
promptly advise the Selling Agents of the receipt by the Company 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.
(m) Exchange Act
Filings . The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
(n) Filing Fees . The
Company agrees to pay the required Commission filing fees relating
to each issuance of the Notes within the time required by Rule
456(b)(1) under the Securities Act (without regard to the proviso
therein) and otherwise in accordance with Rules 456(b) and 457(r)
under the Securities Act.
(o) Suspension of Certain
Obligations . The Company shall not be required to comply with
the provisions of subsections (e), (f), (g), (i) or
(j) of this Section 3 or the provisions of Sections 6(b),
6(c) and 6(d) during any period from the time the Selling Agents
shall have
-12-
suspended solicitation of purchases of
the Notes in their capacity as agent pursuant to a notice from the
Company, provided that the Selling Agents shall not then hold any
Notes as principal purchased from the Company, until the time the
Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently agree for the Selling
Agents to purchase Notes as principal.
SECTION 4. Conditions of
Obligations .
The obligations of a Selling
Agent to solicit offers to purchase the Notes as agent of the
Company, the obligations of any purchasers of the Notes sold
through any Selling Agent as agent and any obligation of a Selling
Agent to purchase Notes as principal or otherwise will be subject
to the accuracy of the representations and warranties on the part
of the Company contained herein as of the date hereof, as of the
date of the effectiveness of any amendment to the Registration
Statement filed prior to the 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
Company’s officers made in any certificate furnished pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) No Stop Order; No
Objection from the Financial Industry Regulatory Authority, Inc.
(“FINRA”) . For the period from and after
effectiveness of this Agreement and prior to the applicable
Settlement Date:
(i) No stop order suspending
the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and the Company shall
not have received from the Commission any notice pursuant to Rule
401(g)(2) under the Securities Act objecting to use of the
automatic shelf registration statement form (unless the Notes are
duly registered in the manner contemplated by such Rule 401(g)(2)
to the satisfaction of the Selling Agents prior to the applicable
Settlement Date); and
(ii) FINRA shall have raised
no objection to the fairness and reasonableness of the underwriting
terms and arrangements that have not been resolved following good
faith discussions between the Company and the applicable Selling
Agents.
(b) Legal Opinions .
On the date hereof, the Selling Agents shall have received the
following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Selling Agents:
(i) Opinion of Company
Counsel . The opinion of McGuireWoods LLP, counsel for the
Company, to the effect of paragraphs (A) and (E) through
(M) below, and the opinion of the General Counsel of the
Company (or such other attorney, reasonably acceptable to counsel
to the Selling Agents, who exercises general supervision or review
in connection with a particular securities law matter for the
Company), to the effect of paragraphs (B) through
(D) below:
-13-
(A) 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 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.
(B) 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
Bank, as the case may be, is required to be so qualified or
licensed.
(C) 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. §55, as amended)
nonassessable, and, except as otherwise set forth in the Base
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 such counsel is
without knowledge of any other security interests, claims, liens or
encumbrances.
(D) Such counsel is without
knowledge that there is (1) 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 or the Base 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 Base Prospectus, or to be
filed as an exhibit to the Registration Statement, is not so
described or filed as required.
(E) This Agreement has been
duly authorized, executed and delivered by the Company and assuming
due authorization, execution and delivery by you, constitutes a
legal, valid and binding agreement of the Company, enforceable
against the Company 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. §1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy.
(F) Each of the Indentures
has been duly authorized, executed and delivered by the Company,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
subject to applicable
-14-
bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and
to equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy.
(G) 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 resolutions of the board of directors of
the Company and this Agreement against payment of the consideration
therefor, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of such Indenture and
enforceable against the Company 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.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy.
(H) The Registration
Statement has become effective under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement
has been issued and such counsel is without knowledge that any
proceeding for that purpose has been instituted or threatened or
that the Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Securities Act objecting to
use of the automatic shelf registration statement form; 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 Securities Act, the Exchange Act
and the Trust Indenture Act.
(I) The forms of Note
attached to the Secretary’s Certificate delivered to the
Selling Agents conform in all material respects to the descriptions
thereof contained in the Base Prospectus.
(J) Each of the Indentures
conforms in all material respects to the description thereof
contained in the Base Prospectus.
(K) 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 (1) the certificate of incorporation or the
bylaws of the Company, each as amended to date, (2) the terms
of any indenture or other material agreement or instrument known to
such counsel and to which the Company or the Principal Subsidiary
Bank is a party or bound, or (3) any order, law or regulation
known to such counsel to be applicable to the Company or the
Principal Subsidiary Bank of any court,
-15-
regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or the Principal Subsidiary
Bank.
(L) No consent, approval,
authorization or order of any court or governmental agency or body
in the United States is necessary or required on behalf of the
Company for the consummation of the transactions contemplated
herein, except such as have been obtained under the Securities Act
and such as may be required under blue sky, state securities or
insurance or similar laws of the United States in connection with
the purchase and distribution of the Notes and such other approvals
(specified in such opinion) as have been obtained.
(M) Such counsel is without
knowledge of any rights to the registration of securities of the
Company under the Registration Statement which have not been waived
by the holders of such rights or which have not expired by reason
of lapse of time following notification of the Company’s
intention to file the Registration Statement.
In rendering such opinion,
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 the opinion of counsel for the Selling Agents or
upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Selling
Agents, and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
its subsidiaries and public officials.
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 or Base Prospectus 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 Base Prospectus or any amendment or supplement thereto
(other than as stated in (I) and (J) 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
or as of the date of such opinion contained or contains any untrue
statement of a material fact or omitted or omits 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 Base
Prospectus, as amended or supplemented, as of its date or as of the
date of such opinion contained or contains any untrue statement of
a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(ii) Opinion of Counsel to
the Selling Agents . The opinion of Morrison &
Foerster LLP, counsel to the Selling Agents, covering the matters
referred to in subparagraph (i) under the subheadings
(E) through (J), 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
-16-
General Corporation Law of the State of
Delaware, to the extent deemed proper and specified in such
opinion, upon the opinion of counsel for the Company or upon the
opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Company, and
(B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and its
subsidiaries and public officials.
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 Base Prospectus or any amendment or supplement thereto (other
than as stated in (I) and (J) above), it has participated
in reviews and discussions in connection with the preparation of
the Registration Statement and Base Prospectus (the documents
incorporated by reference having been prepared and filed by the
Company 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 or as of the date hereof (except for the
financial statements, schedules and the notes thereto and the other
financial information 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 or omits to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading or that the
Base Prospectus, as amended or supplemented, as of its date or as
of the date of such opinion (except for the financial statements,
schedules and the notes thereto and the other financial 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 or omits 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 Selling Agents shall have
received a certificate of the Company, signed by any Senior Vice
President or Treasurer of the Company, dated as of the date hereof,
to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Base 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 Base 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 Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Base Prospectus, (ii) the
representations and warranties of the Company 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 Company 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 Commission, (v) any 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.
-17-
(d) Comfort Letter .
On the date hereof, the Selling Agents shall have received a letter
from PricewaterhouseCoopers LLP
(“PricewaterhouseCoopers”) dated as of the date hereof
and in form and substance satisfactory to the Selling Agents, to
the effect that:
(i) They are an independent
registered public accounting firm with respect to the Company
within the meaning of the Securities Act and the applicable rules
and regulations thereunder adopted by the Commission and the Public
Company Accounting Oversight Board (United States).
(ii) In their opinion, the
consolidated financial statements of the Company and its
subsidiaries audited by them and incorporated by reference in the
Registration Statement and Base Prospectus comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act with respect to registration statements on Form
S-3 and the Exchange Act.
(iii) On the basis of
procedures (but not an audit in accordance with generally accepted
auditing standards) consisting of:
(A) Reading the minutes of
the meetings of the stockholders, the board of directors, executive
committee and audit committee of the Company and the boards of
directors 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. 100, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Base 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 Base Prospectus to the
date of the latest available interim financial data; and
(C) Making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding the specific items for
which representations are requested below, nothing has come to
their attention as a result of the foregoing procedures that caused
them to believe that:
(1) the unaudited condensed
consolidated interim financial statements incorporated by reference
in the Registration Statement and Base Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material
modifications should be made to the unaudited condensed
consolidated interim financial statements, included or incorporated
by reference in the Registration Statement and Base
-18-
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 common stock and
additional paid-in capital, preferred stock or the consolidated
long-term debt of the Company and its 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 Base 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 common stock
and additional paid-in capital, preferred stock or the consolidated
long-term debt of the Company and its subsidiaries on a
consolidated basis, except in all instances for changes or
decreases which the Registration Statement and Base Prospectus
discloses have occurred or may occur, or, in the case of each of
(i) and (ii), PricewaterhouseCoopers shall state any specific
changes or decreases.
(D) 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 Base Prospectus and which are specified by the Selling 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
Company and its subsidiaries identified in such letter.
(E) If such letter or letters
are delivered to a Selling Agent as a condition to closing in an
offering of Notes that such Selling Agent has agreed to purchase as
principal, subsequent to the respective dates as of which
information is given in the Registration Statement, the Base
Prospectus and the applicable Disclosure Package, there shall not
have been (I) any change or decrease specified in such letter
or letters or (II) any change, or any development involving a
prospective change, in or affecting the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause
(I) or (II) above, is, in the judgment of the applicable
Selling Agent, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of such
Notes.
(e) Other Documents .
On the date hereof and on each Settlement Date with respect to any
purchase of Notes by a Selling Agent as principal, counsel to the
Selling 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 Company in connection with the issuance
and sale of Notes as herein contemplated
-19-
shall be satisfactory in form and
substance to such Selling Agent and to counsel to the Selling
Agents.
(f) No Material
Misstatements or Omissions . There shall not have come to the
Selling Agent’s attention any facts that would cause such
Selling Agent to believe that any Disclosure Package, including any
Selling Agent Represented Limited-Use Free Writing Prospectus, at
the Initial Sale Time with respect to the Notes to be issued,
included any 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 by 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 Selling Agents and their
counsel, this Agreement and all obligations of the Selling Agents
may be terminated by the Selling Agents by notice to the Company 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(k)
of this Agreement, the indemnity and contribution agreements set
forth in Sections 7 and 8 of this Agreement, the provisions
concerning payment of expenses under Section 9 of this
Agreement, the provisions concerning the survival of the
representations, warranties and agreements set forth in
Section 10 of this Agreement and the provisions regarding
parties set forth under Section 13 of this Agreement shall
remain in effect.
SECTION 5. Delivery of and Payment
for Notes Sold through the Selling Agents .
Delivery of Notes sold
through a Selling Agent as agent shall be made by the Company to
such Selling 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 Notes on the date fixed for settlement, the Selling
Agent shall promptly notify the Company and deliver the Notes to
the Company, and, if the Selling Agent has theretofore paid the
Company for such Notes, the Company will promptly return such funds
to the Selling Agent. If such failure occurred for any reason other
than default by the Selling Agent in the performance of its
obligations hereunder, the Company will reimburse the Selling Agent
on an equitable basis for its loss of the use of the funds for the
period such funds were credited to the Company’s account.
Unless otherwise agreed between the Company and the Selling 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 Company .
The Company covenants and
agrees with the Selling 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 a
Selling Agent pursuant to a sale of Notes to such Selling Agent as
principal, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to such
Selling Agent pursuant to this Agreement are true and correct at
the time of such acceptance or sale, as the case may be, and an
undertaking that such representations
-20-
and warranties will be true and correct
at the time of delivery to the purchaser or such purchaser’s
agent, or to such Selling 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, the Prospectus as amended and supplemented and the
applicable Disclosure Package to each such time).
(b) Subsequent Delivery of
Certificates . Each time (i) the Company files with the
Commission any Annual Report on Form 10-K or Quarterly Report on
Form 10-Q that is incorporated by reference into the Prospectus,
(ii) if required by the Selling Agents, the Registration
Statement, any Disclosure Package or the Base 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) or (iii) if requested by a Selling Agent, on the
applicable Settlement Date, each time the Selling Agent purchases
Notes as principal pursuant to Section 1(d) of this Agreement,
the Company shall furnish or cause to be furnished to the Selling
Agents forthwith a certificate of the Company, signed by any Senior
Vice President or Treasurer of the Company dated the later of
(x) the date of filing with the Commission of such document or
(y) if applicable, the date of effectiveness of such document,
or the Settlement Date, as the case may be, in form satisfactory to
the Selling Agents to the effect that the statements contained in
the certificate referred to in Section 4(c) of this Agreement
which was last furnished to the Selling Agents are true and correct
at such time as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration
Statement, the applicable Disclosure Package and the Base
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(c), modified as
necessary to relate to the Registration Statement, the applicable
Disclosure Package and the Base Prospectus as amended and
supplemented to the time of delivery of such certificate. If such
certificate is delivered pursuant to clause (iii) above at the
request of a Selling Agent, such certificate shall also relate to
the applicable Disclosure Package as of the applicable Initial Sale
Time.
(c) Subsequent Delivery of
Legal Opinions . Each time (i) the Company files with the
Commission any Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, (ii) if required by the Selling Agents, the
Registration Statement, any Disclosure Package or the Base
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) or (iii) if requested by a
Selling Agent, on the applicable Settlement Date, each time the
Selling Agent purchases Notes as principal pursuant to
Section 1(d) of this Agreement, the Company shall furnish or
cause to be furnished forthwith to the Selling Agents and to
counsel to the Selling Agents the written opinions of McGuireWoods
LLP, counsel to the Company, and the General Counsel of the Company
(or such other attorney, reasonably acceptable to counsel to the
Selling Agents, who exercises general supervision or review in
connection with a particular securities law matter for the Company)
dated the later of (x) the date of filing with the Commission
of such document or (y) if applicable, the date of
effectiveness of such document, or the Settlement Date, as the case
may be, in form and substance satisfactory to the Selling Agents,
of the same tenor as the opinions referred to in
Section 4(b)(i) hereof, but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of
-21-
such opinions (including, if applicable,
any free writing prospectuses to be reflected in such opinion
pursuant to the provisions of Section 3(g)(ii) above); or, in
lieu of such opinions, counsel last furnishing such opinions to the
Selling Agents shall furnish the Selling Agents with a letter
substantially to the effect that the Selling 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
(including, if applicable, any free writing prospectuses to be
reflected in such letter pursuant to the provisions of
Section 3(g)(ii) above)). If such opinion is delivered
pursuant to clause (iv) above at the request of a Selling
Agent, such opinion shall also relate to (A) the applicable
Disclosure Package as of the applicable Initial Time of Sale,
(B) the applicable form of note representing the Notes
described in the applicable Pricing Supplement and (C) if
applicable, the Written Terms Agreement.
(d) Subsequent Delivery of
Comfort Letters . Each time (i) the Company files with the
Commission any Annual Report on Form 10-K, (ii) if required by
the Selling Agents, the Company files with the Commission any
Quarterly Report on Form 10-Q, (iii) if required by the
Selling Agents, the Registration Statement, any Disclosure Package
or the Base 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 12 of Form S-3 under the Securities Act or (iv) if
requested by a Selling Agent, on the applicable Settlement Date,
each time the Selling Agent purchases Notes as principal pursuant
to Section 1(d) of this Agreement, the Company shall cause
PricewaterhouseCoopers forthwith to furnish the Selling Agents a
letter (which may refer to letters previously delivered to the
Selling Agents), dated the later of (x) the date of filing
with the Commission of such document or (y) if applicable, the
date of effectiveness of such document, or the Settlement Date, as
the case may be, in form satisfactory to the Selling Agents, of the
same tenor as the portions of the letter set forth in clauses
(i) and (ii) of Section 4(d) of this Agreement 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 set forth in
clause (iii) 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
Company. If any other information included therein or in the
applicable Disclosure Package is of an accounting, financial or
statistical nature, the Selling 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 as soon as
reasonably practicable after the filing of the Annual Report on
Form 10-K or with respect to any letter required by the Selling
Agents pursuant to subparagraph (ii) or (iii) hereof, at
the request by the Selling Agents.
(e) Obligations of the
Selling Agents . The Selling Agents shall be under no
obligations pursuant to Section 1(b) above until any document
required by this Section 6 is delivered.
SECTION 7. Indemnification
.
(a) Indemnification of the
Selling Agents . The Company agrees to indemnify and hold
harmless each Selling Agent and each person, if any, who controls
any Selling Agent within the
-22-
meaning of the Securities Act and the
Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which such Selling Agent or such controlling person
may become subject, insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430B under
the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact contained
in the Base Prospectus, any preliminary prospectus supplement, any
Issuer Free Writing Prospectus, the information contained in the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and to
reimburse each Selling Agent and each such controlling person for
any and all expenses (including the fees and disbursements of
counsel chosen by the Selling Agents) as such expenses are
reasonably incurred by such Selling Agent or such controlling
person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability,
expense or action; provided , however , that the
foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and
in conformity with the Selling Agent Information (or arises out of
or is based upon statements in or omissions from that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
Trust Indenture Act of either of the Trustees). The indemnity
agreement set forth in this Section 7(a) shall be in addition
to any liabilities that the Company may otherwise have.
(b) Indemnification of the
Company, its Directors and Officers . Each Selling Agent
agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or
expense, as incurred, to which the Company or any such director,
officer or controlling person may become subject, insofar as such
loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereto, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained
in the applicable Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, in each case to the extent, and only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the
Base Prospectus, any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with the Selling Agent Information; and to
reimburse the Company or any such director, officer or controlling
person for any legal and other expense reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense
or
-23-
action. The Company hereby acknowledges
that the only Selling Agent Information consists of the statements
set forth in (w) the eleventh and twelfth paragraphs under the
caption “Supplemental Plan of Distribution” in the Base
Prospectus, (x) the names of the Selling Agents in the
applicable Pricing Supplement or Prospectus in the case of any
purchases of Notes by a Selling Agent as principal, (y) as to
any Issuer Free Writing Prospectus, any statements specifically
identified by a Selling Agent to the Company in writing prior to
the distribution of such document as being subject to this
sentence, and (z) any other statements agreed by the Company
and the Selling Agents in the applicable Written Terms Agreement.
The indemnity agreement set forth in this Section 7(b) shall
be in addition to any liabilities that the Selling Agents may
otherwise have.
(c) Notifications and
Other Indemnification Procedures . 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 an indemnifying party
under this Section 7, notify the indemnifying party in writing
of the commencement thereof; but the failure to so notify the
indemnifying party (i) will not relieve it from liability
under paragraph (a) or (b) above unless and to the extent
it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights
and defenses and (ii) will not, in any event, relieve the
indemnifying party from any liability other than the
indemnification obligation provided in paragraph
(a) or (b) above. In case any such action is brought
against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying
parties similarly notified, 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 a conflict may arise
between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified
parties that 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 assume 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 such
indemnifying party’s 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 (A) the indemnified party shall
have employed separate counsel in accordance with the proviso to
the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more
than one separate counsel (other than local counsel approved by the
Selling Agents)), representing the indemnified parties who are
parties to such action) or (B) 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, in each of which cases the
fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements . The
indemnifying party under this Section 7 shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the
-24-
indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise
or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability
on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party.
SECTION 8. Contribution
.
If the indemnification
provided for in Section 7 is for any reason unavailable to or
otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute
to the aggregate amount paid or payable by such indemnified party,
as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Selling Agents,
on the other hand, from the applicable offering of the Notes
pursuant to this Agreement or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Selling Agents, on
the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and
the Selling Agents, on the other hand, in connection with the
applicable offering of the Notes pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes pursuant to this Agreement
(before deducting expenses) received by the Company, and the total
selling agents’ commission received by the Selling Agents, in
each case as set forth on the front cover page of the applicable
Prospectus, bear to the aggregate initial public offering price of
the Notes as set forth on such cover. The relative fault of the
Company, on the one hand, and the Selling Agents, on the other
hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or
any such inaccurate or alleged inaccurate representation or
warranty relates to information supplied by the Company, on the one
hand, or the Selling Agents, on the other hand, and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to
the limitations set forth in Section 7(c), any legal or other
fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions
set forth in Section 7(c) with respect to notice of
commencement of any action shall apply if a claim for contribution
is to be made under this Section 8; provided, however, that no
additional notice shall be required with respect to any action for
which notice has been given in accordance with Section 7(c)
for purposes of indemnification. The Company and the Selling Agents
agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata
allocation (even if
-25-
the Selling Agents were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
in this Section 8.
Notwithstanding the
provisions of this Section 8, no Selling Agent shall be
required to contribute any amount in excess of the selling
commissions received by such Selling Agent in connection with the
Notes sold by it. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Selling
Agents’ obligations to contribute pursuant to this
Section 8 are several, and not joint, in proportion to the
amount of Notes each Selling Agent sells through its efforts. For
purposes of this Section 8, each Selling Agent and each
person, if any, who controls a Selling Agent within the meaning of
the Securities Act and the Exchange Act shall have the same rights
to contribution as such Selling Agent, and each director of the
Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within
the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company. 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, notify such party or
parties from whom contribution may be sought, as contemplated by
the preceding paragraph. However, 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.
SECTION 9. Payment of Expenses
.
Except as provided in the
applicable Written Terms Agreement, the Company will pay all
expenses incident to the performance of its obligations under this
Agreement, including:
(a) The preparation,
printing, delivery to the Selling Agents and filing of the
Registration Statement, each product supplement, the Base
Prospectus and the Prospectus and any amendments or supplements
thereto and any Issuer Free Writing Prospectus;
(b) The preparation, filing
and reproduction of this Agreement;
(c) The preparation,
printing, issuance and delivery of the Notes to the Selling 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 Selling 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 Company’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 Selling 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 3(l) hereof, including filing fees
and the reasonable fees
-26-
and disbursements of counsel for the
Selling Agents in connection therewith and in connection with the
preparation, printing, reproduction and delivery to the Selling
Agents of any survey of the U.S. state securities laws governing
the offering of the Notes;
(h) The preparation,
printing, reproduction and delivery to the Selling 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) With prior Company
approval, 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 FINRA;
(l) Any advertising and other
out-of-pocket expenses of the Selling Agents incurred with the
approval of the Company;
(m) The cost of providing any
CUSIP or other securities identification numbers for the Notes;
and
(n) The fees and expenses of
any depository and any nominees thereof in connection with the
Notes.
SECTION 10. Representations,
Warra
|
