BANK
OF AMERICA CORPORATION
Medium-Term Notes,
Series K
Due Nine Months or more from Date of Issue
DISTRIBUTION
AGREEMENT
April 15, 2004
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
pursuant to Section 1(f)
of this Agreement.
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware corporation (the
"Corporation"), has authorized and proposes to issue and sell from
time to time in the manner contemplated by this Agreement its
Senior Medium-Term Notes, Series K (the "Senior Notes") and its
Subordinated Medium-Term Notes, Series K (the "Subordinated Notes,"
and together with the Senior Notes, the "Notes"). The Senior Notes
are to be issued pursuant to an Indenture dated as of January 1,
1995 between the Corporation and The Bank of New York (the "Senior
Trustee"), as trustee, as supplemented by the First Supplemental
Indenture dated as of September 18, 1998 and the Second
Supplemental Indenture dated as of May 7, 2001 (collectively, the
"Senior Indenture"). The Subordinated Notes are to be issued
pursuant to an Indenture dated as of January 1, 1995 between the
Corporation and The Bank of New York (collectively, the
"Subordinated Trustee"), as trustee, as supplemented by the First
Supplemental Indenture dated as of August 28, 1998 (the
"Subordinated Indenture"). The Senior Trustee and the Subordinated
Trustee are collectively referred to herein as the "Trustees," and
the Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "Indentures."
As of the
date hereof, the Corporation has authorized the issuance and sale
of up to $10,000,000,000 aggregate initial offering price of Notes
(or its equivalent, based upon the exchange rate on the applicable
trade date in such foreign or composite currencies as the
Corporation shall designate at the time of issuance). The Notes are
unsecured debt securities which have been registered under the
Securities Act of 1933, as amended (the "1933 Act"), on Form S-3
with the Securities and Exchange Commission (the "SEC"), pursuant
to Registration No. 333-112708. The registration statement has been
declared effective by the SEC, and the Trustees have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (and any further registration statement
which may be filed by the Corporation for the purpose of
registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit)
and the prospectus relating to the offer and sale of the
Corporation's debt securities constituting a part thereof, as
supplemented by a prospectus supplement dated on or about the date
hereof (which relates to the registration statement in accordance
with Rule 429 promulgated under the 1933 Act) relating to the
Notes, including all documents incorporated therein by reference,
as from time to time amended or
supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or
the 1933 Act or otherwise, are referred to collectively herein as
the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agents by the Corporation for use in connection with the offering
of the Notes which is not required to be filed by the Corporation
pursuant to Rule 424(b) or Rule 434 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"), the term
"Prospectus" shall also refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
All
references in this Agreement to financial statements and schedules
and other information which is "disclosed," "contained,"
"included," or "stated" (or other references of like import) in the
Registration Statement or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus, as the case may be,
shall be deemed to include the filing of any document under the
1934 Act which is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
The
Corporation confirms its agreement with each of you (individually,
an "Agent" and collectively, the "Agents") with respect to the
issue and sale from time to time by the Corporation of the Notes as
follows:
SECTION 1. Appointment of Agents.
(a)
Appointment . Subject to the terms and conditions stated
herein, and subject to the reservation by the Corporation of the
right to sell Notes directly on its own behalf, the Corporation
hereby appoints each of you as Agent in connection with the offer
and sale of the Notes. The Corporation reserves the right to sell
Notes, at any time, on its own behalf to any unsolicited purchaser,
whether directly to such purchaser or through an agent for such
purchaser. Upon the sale of any Notes to an unsolicited purchaser,
no Agent named herein shall be entitled to any commission pursuant
to this Agreement.
(b)
Solicitations as Agent . Subject to the terms and conditions
set forth herein, each Agent agrees, as agent of the Corporation,
to use its reasonable best efforts when requested by the
Corporation to solicit offers to purchase the Notes upon the terms
and conditions set forth in the Prospectus and the administrative
procedures with respect to the sale of Notes as may be agreed upon
from time to time between the Agents and the Corporation (the
"Procedures"). Initial Procedures dated as of April 15, 2004 shall
remain in effect until changed in writing signed by the Agents and
the Corporation. The Agents and the Corporation agree to perform
the respective duties and obligations specifically provided to be
performed by them in the Procedures. Notwithstanding any provision
herein to the contrary, the Corporation reserves the right, in its
sole discretion, to suspend solicitation of purchases of the Notes
through the Agents, as agents, commencing at any time for any
period of time or permanently. The Corporation will timely deliver
notice to the Agents of its decision to suspend solicitations. Upon
receipt of instructions from the Corporation, the Agents will
forthwith suspend solicitation of purchases of the Notes until such
time as the Corporation has advised the Agents that such
solicitation may be resumed.
Each
Agent will communicate to the Corporation, orally, each offer to
purchase Notes solicited by such Agent on an agency basis, other
than those offers rejected by the Agent. Each
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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 Agent and any such rejection
shall not be deemed a breach of the Agent's agreement contained
herein. The Corporation may accept or reject any proposed purchase
of the Notes, in whole or in part, and any such rejection shall not
be deemed a breach of the Corporation's agreement herein.
All Notes sold
through an Agent, as agent, will be sold at 100% of their principal
amount unless otherwise agreed to by the Corporation and such
Agent. The purchase price, interest rate, maturity date and other
terms of the Notes (as applicable) specified in Exhibit B
hereto shall be agreed upon by the Corporation and such Agent and
set forth in a pricing supplement to the Prospectus (a "Pricing
Supplement") to be prepared following each acceptance by the
Corporation of an offer for the purchase of Notes.
Each Agent
shall use its reasonable efforts to assist the Corporation in
obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the
Corporation. Each Agent shall not have any liability to the
Corporation if any such agency purchase is not consummated for any
reason. If the Corporation shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the
Corporation shall (i) hold the Agent for such purchase harmless
against any loss, claim or damage arising from or as a result of
such default by the Corporation and (ii) notwithstanding such
default, pay to such Agent any commission to which it would be
entitled in connection with such sale.
(c)
Commissions . For those offers to purchase Notes accepted by
the Corporation, the Agent shall be paid a commission. Unless
otherwise agreed between the Corporation and the Agent, such
commission shall be an amount equal to the applicable percentage of
the principal amount of each Note sold by the Corporation as a
result of a solicitation made by such Agent as set forth in
Exhibit C hereto.
(d)
Purchases as Principal . The Agents shall not have any
obligation to purchase Notes from the Corporation as principal, but
an Agent and the Corporation may expressly agree from time to time
that such Agent shall purchase Notes as principal. If an Agent and
the Corporation shall expressly so agree, Notes shall be purchased
by such Agent as principal. Unless otherwise agreed between the
Corporation and the Agent and, if required by law or otherwise,
disclosed in a Pricing Supplement, each Note sold to an Agent as
principal shall be purchased by such Agent at a price equal to 100%
of the principal amount thereof less a discount equivalent to the
applicable commissions set forth in Exhibit C hereto and may
be resold by such Agent at prevailing market prices at the time or
times of resale as determined by such Agent. Such purchases as
principal shall otherwise be made in accordance with terms agreed
upon by the Agent and the Corporation (which shall be agreed upon
orally, with written confirmation prepared by the Agent and
delivered to the Corporation within two business days of such oral
agreement). In the absence of a separate written agreement, the
Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations, warranties
and covenants of the Corporation herein contained and shall be
subject to the terms and conditions set forth herein, including
Section 10(b) hereof.
(e)
Sub-Agents . An Agent may engage the services of any other
broker or dealer in connection with the resale of any Notes
purchased as principal, but no Agent may appoint sub-
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agents without the prior consent of the Corporation. In
connection with sales by an Agent of Notes purchased by such Agent
as principal to other brokers or dealers, such Agent may allow any
portion of the discount received in connection with such purchases
from the Corporation to such brokers and dealers.
(f)
Appointment of Additional Agents . Notwithstanding any
provision herein to the contrary, the Corporation reserves the
right to appoint additional agents for the offer and sale of Notes,
which agency may be on an on-going basis or on a one-time basis.
Any such additional agent shall become a party to this Agreement
and shall thereafter be subject to the provisions hereof and
entitled to the benefits hereunder upon the execution of a
counterpart hereof or other form of acknowledgment of its
appointment hereunder, including the form of letter attached hereto
as Exhibit D , and delivery to the Corporation of addresses
for notice hereunder and under the Procedures. After the time an
additional Agent is appointed, the Corporation shall deliver to the
additional Agent, at such Agent's request, copies of the documents
delivered to other Agents under Sections 4(a), 4(b) and 4(c)
and, if such appointment is on an on-going basis, Sections 6(b),
6(c) and 6(d) hereof. If such appointment is on an on-going
basis, the Corporation will notify the other active Agents of such
appointment.
(g)
Reliance . The Corporation and the Agents agree that any
Notes purchased from the Corporation by an Agent as principal shall
be purchased, and such Notes shall be placed by such Agent, in
reliance on the representations, warranties, covenants and
agreements of the Corporation contained herein and on the terms and
conditions and in the manner provided herein or provided in the
Procedures.
(h)
Sale of Notes . The Corporation shall not sell or approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Corporation from time to time or
in excess of the principal amount of Notes registered pursuant to
the Registration Statement. The Agents will have no responsibility
for maintaining records with respect to the aggregate principal
amount of Notes sold or otherwise monitoring the availability of
Notes for sale under the Registration Statement.
SECTION
2. Representations and Warranties.
(a)
The Corporation represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Corporation
of an offer for the purchase of Notes (whether through an Agent as
agent or to an Agent as principal), as of the date of each delivery
of Notes (whether through an Agent as agent or to an Agent as
principal) (the date of each such delivery to an Agent as principal
being hereafter referred to as a "Settlement Date"), and as of any
time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of
debt securities under the Registration Statement or furnished
solely for the purpose of disclosure under Item 9 or Item 12
thereof) (each of the times referenced above, including a
Settlement Date, being referred to herein as a "Representation
Date") as follows:
(i) The Corporation meets the requirements for use of
Form S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has been declared
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effective. The Registration Statement meets the requirements of
Rule 415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) (a) the Registration Statement, as
amended or supplemented, the Prospectus, and the applicable
Indenture do and will comply in all material respects with the
applicable requirements of the 1933 Act, the 1939 Act and the 1934
Act and the respective rules and regulations thereunder, (b) the
Registration Statement, as amended as of any such time, does 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, does
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 Corporation makes no
representations or warranties as to (x) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
1939 Act of either of the Trustees or (y) the information contained
in the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Corporation by or on
behalf of any Agent specifically for inclusion in the Registration
Statement and the Prospectus.
(iii) The Corporation has complied and will comply with all
the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing
business in Cuba; provided , however , that in the
event that such Section 517.075 shall be repealed, or
amended such that issuers shall no longer be required to disclose
in prospectuses information regarding business activities in Cuba
or that a broker, dealer or agent shall no longer be required to
obtain a statement from issuers regarding such compliance, then
this representation and agreement shall be of no further force and
effect.
(iv) The documents incorporated by reference or deemed to be
incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the SEC, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC thereunder and, when read together
with the other information in the Prospectus, at the date hereof,
at the date of the Prospectus and at each Representation Date, did
not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(b) Additional Certifications . Any certificate signed
by any director or officer of the Corporation and delivered to an
Agent or to counsel for such Agent in connection with an offering
of Notes or the sale of Notes to an Agent as principal shall be
deemed a representation and warranty by the Corporation to such
Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
(c) Full Force and Effect . All representations,
warranties, covenants and agreements of the Corporation contained
in this Agreement or in certificates of officers of the
Corporation
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submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or by
or on behalf of the Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 3. Covenants of the Corporation.
The Corporation
covenants with the Agents as follows:
(a) Notice of Certain Events . The Corporation will
notify the Agents immediately of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the filing of any
supplement to the Prospectus or any document to be filed pursuant
to the 1934 Act which will be incorporated by reference in the
Prospectus, (iii) the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus (other than
with respect to a document filed with the SEC pursuant to the 1934
Act which will be incorporated by reference in the Registration
Statement and the Prospectus), (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information relating
thereto (other than such a request with respect to a document filed
with the SEC pursuant to the 1934 Act which will be incorporated by
reference in the Registration Statement and the Prospectus), and
(v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Corporation will make every
reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b)
Notice of Certain Proposed Filings . The Corporation will
give the Agents notice of its intention to file or prepare any
additional registration statement with respect to the registration
of additional Notes or any amendment to the Registration Statement
or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the
interest rates or maturity dates of Notes or similar changes or an
amendment or supplement effected by the filing of a document with
the SEC pursuant to the 1934 Act) and, upon request, will furnish
the Agents with copies of any such registration statement or
amendment or supplement proposed to be filed or prepared a
reasonable time in advance of such proposed filing or preparation,
as the case may be, and will not file any such registration
statement or amendment or supplement in a form as to which the
Agents or counsel to the Agents reasonably object.
(c)
Copies of the Registration Statement and the Prospectus and 1934
Act Filings . The Corporation will deliver to the Agents
without charge, as many signed and conformed copies of (i) the
Indentures; (ii) the Registration Statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents incorporated by
reference in the Prospectus) and (iii) a certified copy of the
corporate authorization of the issuance and sale of the Notes as
the Agents may reasonably request. The Corporation will furnish to
the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the
Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes under the
Act. Upon request, the Corporation will furnish to the Agents a
paper copy of any Annual Report on Form 10-K, Quarterly Report on
Form 10-Q or Current Report on Form 8-K filed by the Corporation
with the SEC pursuant to the 1934 Act as soon as practicable after
the filing thereof.
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(d)
Preparation of Pricing Supplements . The Corporation will
prepare, with respect to any Notes to be sold through or to an
Agent pursuant to this Agreement, a Pricing Supplement with respect
to such Notes in substantially the form previously approved by the
Agents and will file such Pricing Supplement with the SEC pursuant
to Rule 424(b) under the 1933 Act not later than the close of
business on the second business day after the date on which such
Pricing Supplement is first used.
(e)
Revisions of Prospectus -- Material Changes . Except as
otherwise provided in subsection (k) of this Section, if at
any time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Corporation, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein not misleading in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate
notice shall be given, and confirmed in writing, to each Agent to
cease the solicitation of offers to purchase the Notes in the
Agent's capacity as agent (and, if so notified, such Agent shall
promptly cease such solicitation) and to cease sales of any Notes
the Agent may then own as principal, and the Corporation will
promptly prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f)
Prospectus Revisions -- Periodic Financial Information .
Except as otherwise provided in subsection (k) of this
Section, within twenty-four hours of a release to the general
public of interim financial statement information related to the
Corporation with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
respect to any fiscal year, the Corporation shall promptly furnish
such information to the Agents, confirmed in writing, and
thereafter shall cause promptly the Prospectus to be amended or
supplemented to include or incorporate by reference financial
information with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding
thereof, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(g)
Prospectus Revisions -- Audited Financial Information .
Except as otherwise provided in subsection (k) of this
Section, on or prior to the date on which there shall be released
to the general public financial information included in or derived
from the audited financial statements of the Corporation for the
preceding fiscal year, the Corporation shall furnish promptly such
information to the Agents and thereafter shall cause promptly the
Registration Statement and the Prospectus to be amended to include
or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations
as shall be necessary for an understanding of such financial
statements, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(h)
Earnings Statements . The Corporation will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered
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thereby, an earnings statement (in form complying with the
provisions of Section 11(a) and of Rule 158 under the 1933 Act)
covering each twelve-month period beginning, in each case, not
later than the first day of the Corporation's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i)
Blue Sky Qualification . The Corporation will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Agents may designate and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; provided ,
however , that the Corporation shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Corporation will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Corporation will
promptly advise the Agents of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of
the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j)
1934 Act Filings . The Corporation, during the period when
the Prospectus is required to be delivered under the 1933 Act, will
file promptly all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k)
Suspension of Certain Obligations . The Corporation shall
not be required to comply with the provisions of subsections
(e) , (f) or (g) of this Section or the
provisions of Sections 6(b) , 6(c) and 6(d)
during any period from the time the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agent
pursuant to a notice from the Corporation, provided that the Agents
shall not then hold any Notes as principal purchased from the
Corporation, until the time the Corporation shall determine that
solicitation of purchases of the Notes should be resumed or shall
subsequently agree for the Agents to purchase Notes as
principal.
SECTION 4. Conditions of Obligations.
The
obligations of an Agent to solicit offers to purchase the Notes as
agent of the Corporation, the obligations of any purchasers of the
Notes sold through any Agent as agent and any obligation of an
Agent to purchase Notes as principal or otherwise will be subject
to the accuracy of the representations and warranties on the part
of the Corporation contained herein as of the date hereof, as of
the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Settlement Date (including the filing
of any document incorporated by reference therein) and as of the
Settlement Date, to the accuracy of the statements of the
Corporation's officers made in any certificate furnished pursuant
to the provisions hereof, to the performance by the Corporation of
its obligations hereunder and to the following additional
conditions:
(a) No
stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
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(b)
Legal Opinions . On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof
and in form and substance satisfactory to the Agents:
(1) Opinion of Corporation Counsel . The opinion of
Helms Mulliss & Wicker, PLLC, counsel for the Corporation, to
the effect of paragraphs (i) and (iv) through (xiii) below, and the
opinion of the General Counsel of the Corporation (or such other
attorney, reasonably acceptable to counsel to the Agents, who
exercises general supervision or review in connection with a
particular securities law matter for the Corporation), to the
effect of paragraphs (ii) and (iii) below:
(i) The Corporation is a duly organized and validly
existing corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Prospectus
and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of Bank of America,
N.A. and Fleet National Bank (the "Principal Subsidiary Banks") is
a national banking association formed under the laws of the United
States and authorized thereunder to transact business.
(ii) Each of the Corporation and each Principal Subsidiary
Bank is qualified or licensed to do business as a foreign
corporation in any jurisdiction in which such counsel has knowledge
that the Corporation or the Principal Subsidiary Bank, as the case
may be, is required to be so qualified or licensed.
(iii) All the outstanding shares of capital stock of each 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 Prospectus, all outstanding shares of capital stock of each
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Corporation free and clear of
any perfected security interest and such counsel is without
knowledge of any other security interests, claims, liens or
encumbrances.
(iv) This Agreement has been duly authorized, executed and
delivered by the Corporation and constitutes a legal, valid and
binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited by federal
and state securities laws, and further subject to 12 U.S.C.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy.
(v) Each of the Indentures has been duly authorized,
executed and delivered by the Corporation, has been duly qualified
under the 1939 Act, and constitutes a legal, valid and binding
instrument of the Corporation enforceable against the Corporation
in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors
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now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and further
subject to 12 U.S.C. §1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public
policy;
(vi) The Notes have been duly authorized and, when the terms
of the Notes have been established and when the Notes have been
completed, executed, authenticated and delivered in accordance with
the provisions of the applicable Indenture, the applicable Board
Resolutions and this Agreement against payment of the consideration
therefor, will constitute legal, valid and binding obligations of
the Corporation entitled to the benefits of such Indenture and
enforceable against the Corporation in accordance with their terms,
subject to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.
§1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy.
(vii) The Registration Statement has become effective under
the 1933 Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and such counsel is without
knowledge that any proceeding for that purpose has been instituted
or threatened; and the Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical
information contained therein or incorporated by reference therein,
as to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the
1933 Act, the 1934 Act, the 1939 Act and the respective rules and
regulations of the SEC thereunder.
(viii) The forms of Note attached to the Secretary's
Certificate delive
