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Collateral Agreement - Bac Capital Trust XIII

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Sectors: Banking
Governing Law: New York, View New York State Laws
Effective Date: February 16, 2007
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Exhibit 10.1


COLLATERAL AGREEMENT

among

BANK OF AMERICA CORPORATION, THE BANK OF NEW YORK TRUST COMPANY, N.A.,

as Collateral Agent, Custodial Agent,

Securities Intermediary and Securities Registrar, and

BAC CAPITAL TRUST XIII, acting through The Bank of New York,

as Property Trustee

February 16, 2007


TABLE OF CONTENTS

ARTICLE I DEFINITIONS 1

Section 1.01

Definitions. 1 ARTICLE II PLEDGE 8

Section 2.01

Pledge. 8

Section 2.02

Control. 8

Section 2.03

Termination. 8 ARTICLE III CONTROL 9

Section 3.01

Establishment of Collateral Account. 9

Section 3.02

Treatment as Financial Assets. 9

Section 3.03

Sole Control by Collateral Agent. 9

Section 3.04

Securities Intermediary' s Location. 10

Section 3.05

No Other Claims. 10

Section 3.06

Investment and Release. 10

Section 3.07

No Other Agreements. 10

Section 3.08

Powers Coupled with an Interest. 10

Section 3.09

Waiver of Lien; Waiver of Set-off. 11 ARTICLE IV CUSTODY 11

Section 4.01

Appointment. 11

Section 4.02

Custody. 11

Section 4.03

Termination of Custody Account. 11

Section 4.04

Waiver of Lien; Waiver of Set-off. 11 ARTICLE V DISTRIBUTIONS ON COLLATERAL AND CUSTODY NOTES 12

Section 5.01

Interest on Notes. 12

Section 5.02

Payments Following Termination Event. 12

Section 5.03

Payments Prior to or on Stock Purchase Date. 12

Section 5.04

Payments to Property Trustee. 13

Section 5.05

Assets Not Properly Released. 13 ARTICLE VI INITIAL DEPOSIT; EXCHANGE OF PREFERRED HITS AND QUALIFYING TREASURY SECURITIES FOR TREASURY HITS AND CORPORATE HITS; REINVESTMENT OF PROCEEDS OF PLEDGED TREASURY SECURITIES 14

Section 6.01

Initial Deposit of Notes. 14


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TABLE OF CONTENTS

(continued)


Section 6.02

Exchange of Preferred HITS and Qualifying Treasury Securities for Treasury HITS and Corporate HITS. 14

Section 6.03

Exchange of Treasury HITS and Corporate HITS for Preferred HITS and Qualifying Treasury Securities. 15

Section 6.04

Termination Event. 16

Section 6.05

Reinvestment of Proceeds of Pledged Treasury Securities. 17

Section 6.06

Application of Proceeds in Settlement of Stock Purchase Contracts. 18 ARTICLE VII VOTING RIGHTS - NOTES 18

Section 7.01

Voting Rights. 18 ARTICLE VIII

RIGHTS AND REMEDIES 19

Section 8.01

Rights and Remedies of the Collateral Agent. 19

Section 8.02

Remarketing; Contingent Exchange Elections by Holder of Preferred HITS. 20

Section 8.03

Contingent Disposition Election by Holder of Corporate HITS. 21 ARTICLE IX REPRESENTATIONS AND WARRANTIES; COVENANTS 22

Section 9.01

Representations and Warranties. 22

Section 9.02

Covenants. 23 ARTICLE X THE COLLATERAL AGENT, THE CUSTODIAL AGENT, THE SECURITIES INTERMEDIARY AND THE SECURITIES REGISTRAR 23

Section 10.01

Appointment, Powers and Immunities. 23

Section 10.02

Instructions of the Corporation. 24

Section 10.03

Reliance by Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar. 25

Section 10.04

Certain Rights. 25

Section 10.05

Merger, Conversion, Consolidation or Succession to Business. 27

Section 10.06

Rights in Other Capacities. 27

Section 10.07

Non-reliance on Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar. 28

Section 10.08

Compensation and Indemnity. 28

Section 10.09

Failure to Act. 29

Section 10.10

Resignation of Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar. 29


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TABLE OF CONTENTS

(continued)

Section 10.11

Right to Appoint Agent or Advisor. 31

Section 10.12

Survival. 31

Section 10.13

Exculpation. 31

Section 10.14

Statements and Confirmations. 31

Section 10.15

Tax Allocations. 32 ARTICLE XI AMENDMENT 32

Section 11.01

Amendment. 32

Section 11.02

Execution of Amendments. 32 ARTICLE XII MISCELLANEOUS 32

Section 12.01

No Waiver. 32

Section 12.02

Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury. 33

Section 12.03

Notices. 33

Section 12.04

Successors and Assigns. 33

Section 12.05

Severability. 34

Section 12.06

Expenses, Etc. 34

Section 12.07

Security Interest Absolute. 34

Section 12.08

Notice of Termination Event. 35

Section 12.09

Incorporation by Reference. 35

Section 12.10

No Recourse. 35


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TABLE OF CONTENTS

(continued)

EXHIBITS

Exhibit A Form of Preferred HITS Certificate

Exhibit B Form of Treasury HITS Certificate Exhibit C Form of Corporate HITS Certificate

SCHEDULES

Schedule I Reference Dealers

Schedule II Contact Persons for Confirmation


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COLLATERAL AGREEMENT , dated as of February 16, 2007, among BANK OF AMERICA CORPORATION , a Delaware corporation (the " Corporation" ), THE BANK OF NEW YORK TRUST COMPANY, N.A. (" The Bank of New York Trust Company" ), as collateral agent (in such capacity, the " Collateral Agent" ), as Custodial Agent (in such capacity, the " Custodial Agent" ), as securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to the Collateral Account (as defined herein) (in such capacity, the " Securities Intermediary" ), and as securities registrar with respect to the HITS (in such capacity, the " Securities Regist r ar" ), and BAC CAPITAL TRUST XIII , a Delaware statutory trust (the " Trust" ), acting through THE BANK OF NEW YORK , not in its individual capacity but solely as Property Trustee on behalf of the Trust (in such capacity, the " Property Trustee" ).

RECITALS

The Corporation and the Trust (acting through the Property Trustee) are parties to the Stock Purchase Contract Agreement, dated as of the date hereof (as modified and supplemented and in effect from time to time, the " Stock Purchase Contract Agreement" ), pursuant to which the Corporation has agreed to issue stock purchase contracts, having a stated amount of $100,000 per contract (each, a " Stock Purchase Contract" ) to the Trust.

Each Stock Purchase Contract requires the Corporation to issue and sell, and the Property Trustee (on behalf of the Trust) to purchase, on the Stock Purchase Date (as defined in the Stock Purchase Contract Agreement), for an amount equal to $100,000 (the " Purchase Price" ), one share of the Corporation' s Floating Rate Non-Cumulative Preferred Stock, Series F, $100,000 liquidation preference per share (the " Preferred Stock" ).

Pursuant to the Declaration, the Stock Purchase Contract Agreement and the Stock Purchase Contracts, the Trust acting through the Property Trustee is required to execute and deliver this Agreement, to grant the pledge provided herein of the Collateral to secure the Obligations (as defined herein) and to appoint the Custodial Agent to establish and maintain the Custody Account (as defined herein).

NOW, THEREFORE, THIS COLLATERAL AGREEMENT WITNESSETH: For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Corporation, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Securities Registrar and the Trust mutually agree as follows:

ARTICLE I

DEFINITIONS Section 1.01 Definitions .

For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(a) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders.

(b) The words " herein" , " hereof" and " hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision and references to any Article, Section or other subdivision are references to an Article, Section or other subdivision of this Agreement.

(c) The following terms that are defined in the UCC shall have the meanings set forth therein: " certificated security" , " control" , " financial asset" , " financing statement" , " entitlement order" , " securities account" , " security entitlement" and " funds-transfer system" .

(d) Capitalized terms used herein and not defined herein have the meanings assigned to them in the Declaration.

(e) The following terms have the meanings given to them in this Section 1.01(e) : " Additional Distribution Date" has the meaning specified in the Declaration. " Address for Notices" has the meaning specified in Section 12.03 . " Agreement" means this Collateral Agreement, as the same may be amended, modified or supplemented from time to time.

" Bank of America Deposit" has the meaning specified in the Stock Purchase Contract Agreement.

" Book-Entry HITS" has the meaning specified in the Declaration. " Book-Entry HITS Certificates" has the meaning specified in the Declaration. " Cash" means any coin or currency of the United States as at the time shall be legal tender for payment of public and private debts.

" Collateral" means the collective reference to: (1) the Collateral Account and all investment property and other financial assets from time to time credited to the Collateral Account and all security entitlements with respect thereto, including, without limitation, (A) the Notes, other than any Notes that are Transferred to (x) the Custodial Agent in accordance with Section 6.02 upon the Exchange of Preferred HITS and Qualifying Treasury Securities for Treasury HITS and Corporate HITS pursuant to Sections 5.13(a)(i) , (b) and (c) of the Declaration from time to time or (y) the Remarketing Agent or the Custody Account in accordance with Section 8.02(b) upon a Successful Remarketing and (B) any Qualifying Treasury Securities and security entitlements thereto delivered from time to time upon the exchange of Preferred HITS and Qualifying Treasury Securities for Treasury HITS and Corporate HITS pursuant to Sections 5.13(a)(i) , (b) and (c) of the Declaration and in accordance with Section 6.02 ;

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(2) all Qualifying Treasury Securities and security entitlements thereto purchased by the Collateral Agent with the Proceeds of Qualifying Treasury Securities pursuant to Section 6.05 ;

(3) the Bank of America Deposit;

(4) all Proceeds of any of the foregoing (whether such Proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by or against the Trust, as pledgor or with respect to the pledgor); and

(5) all powers and rights now owned or hereafter acquired under or with respect to the Collateral.

" Collateral Account" means the securities account of The Bank of New York Trust Company, as Collateral Agent, maintained by the Securities Intermediary and designated " The Bank of New York Trust Company, as Collateral Agent of Bank of America Corporation, as pledgee of BAC Capital Trust XIII, acting through The Bank of New York, as Property Trustee" .

" Collateral Agent" means the Person named as the " Collateral Agent" in the first paragraph of this Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter " Collateral Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement. " Corporation" means the Person named as the " Corporation" in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provisions of the Stock Purchase Contract Agreement, and thereafter " Corporation" shall mean such successor. " Custodial Agent" means the Person named as the " Custodial Agent" in the first paragraph of this Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter " Custodial Agent" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.

" Custody Account" means the securities account of The Bank of New York Trust Company, as Custodial Agent, designated " The Bank of New York Trust Company as Custodial Agent for BAC Capital Trust XIII" .

" Custody Notes" has the meaning specified in Section 4.01 .

" Declaration" means the Amended and Restated Declaration of Trust, dated as of the date hereof, among the Corporation, as Sponsor, the Property Trustee, the Delaware Trustee and the Regular Trustees (each as named therein), and the several Holders (as defined therein).


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" Definitive HITS Certificates" has the meaning specified in the Declaration.

" Exchange" means an exchange of Preferred HITS and Qualifying Treasury Securities for Treasury HITS and Corporate HITS pursuant to Section 5.13(b) of the Declaration and Section 6.02 or an exchange of Treasury HITS and Corporate HITS for Preferred HITS and Qualifying Treasury Securities pursuant to Section 5.13(d) of the Declaration and Section 6.03 .

" Exchange Period" has the meaning specified in the Declaration.

" Final Dealer" has the meaning specified in Section 6.05(a) .

" HITS" has the meaning specified in the Declaration. " Indemnitees" has the meaning specified in Section 10.08(b) . " Like Amount" has the meaning specified in the Declaration. " Loss" (and collectively, " Losses" ) has the meaning specified in Section 10.08(b) .

" Market Disruption Event" has the meaning specified in the Supplemental Indenture.

" Notes" means the Remarketable Floating Rate Junior Subordinated Notes due 2043 of the Corporation issued pursuant to the Supplemental Indenture.

" Notice of Contingent Disposition Election" means a Notice of Contingent Disposition Election substantially in the form set forth on the reverse side of the form of Corporate HITS Certificate, a copy of which is attached hereto as Exhibit C . " Notice of Contingent Exchange Election" means a Notice of Contingent Exchange Election substantially in the form set forth on the reverse side of the form of Preferred HITS Certificate, a copy of which is attached hereto as Exhibit A .

" Obligations" means all obligations and liabilities of the Trust and the Property Trustee on behalf of the Trust under each Stock Purchase Contract, the Stock Purchase Contract Agreement and this Agreement or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of principal, interest (including, without limitation, interest accruing before and after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Property Trustee or the Trust, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Corporation or the Collateral Agent or the Securities Intermediary that are required to be paid by the Trust pursuant to the terms of any of the foregoing agreements).


4

" Payment Account" has the meaning specified in the Declaration.

" Permitted Investments" means any one of the following, in each case maturing on the Business Day following the date such investment is made:

(1) any evidence of indebtedness with an original maturity of 365 days or less issued, or directly and fully guaranteed or insured, by the United States of America or any agency or instrumentality thereof ( provided that the full faith and credit of the United States of America is pledged in support of the timely payment thereof or such indebtedness constitutes a general obligation of it);

(2) deposits, certificates of deposit or acceptances with an original maturity of 365 days or less of any institution which is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million at the time of deposit (and which may include the Collateral Agent);

(3) investments with an original maturity of 365 days or less of any Person that are fully and unconditionally guaranteed by a bank referred to in clause (2) ;

(4) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any agency thereof and backed as to timely payment by the full faith and credit of the United States of America;

(5) investments in commercial paper, other than commercial paper issued by the Corporation or its Affiliates, of any corporation incorporated under the laws of the United States of America or any State thereof, which commercial paper has a rating at the time of purchase at least equal to " A-1" by Standard & Poor' s Ratings Services (" S&P" ) or at least equal to " P-1" by Moody' s Investors Service, Inc. (" Moody' s" ); and (6) investments in money market funds (including, but not limited to, money market funds managed by the Collateral Agent or an Affiliate of the Collateral Agent) registered under the Investment Company Act of 1940, as amended, rated in the highest applicable rating category by S&P or Moody' s. " Pledge" means the lien and security interest created by this Agreement. " Pledged Notes" means each Note deposited with the Collateral Agent pursuant to Section 6.01 or delivered to the Collateral Agent pursuant to Section 6.03 , until such time as it is released from the Pledge and delivered to the Custodial Agent pursuant to Section 6.02 or to the Remarketing Agent or the Custody Account pursuant to Section 8.02(b) .


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" Pledged Treasury Securities" means Qualifying Treasury Securities from time to time credited to the Collateral Account pursuant to Section 6.02 and not then released from the Pledge pursuant to Section 6.03 , together with all Qualifying Treasury Securities purchased from time to time by the Collateral Agent with the Proceeds of maturing Pledged Treasury Securities pursuant to Section 6.05 .

" Preferred Stock" has the meaning specified in the Recitals of this Agreement.

" Proceeds" has the meaning ascribed thereto in Section 9-102(a)(64) of the UCC and includes, without limitation, all interest, dividends, Cash, instruments, securities, financial assets and other property received, receivable or otherwise distributed upon the sale (including, without limitation, the Remarketing), exchange, collection or disposition of any financial assets from time to time held in the Collateral Account. " Property Trustee" means the Person named as the " Property Trustee" in the first paragraph of this Agreement until a successor Property Trustee shall have become such pursuant to the applicable provisions of the Declaration, and thereafter " Property Trustee" shall mean such Person or any subsequent successor who is appointed pursuant to the Declaration.

" Purchase Price" has the meaning specified in the Recitals of this Agreement.

" Qualifying Treasury Securities" has the meaning specified in the Declaration. " Recombination Notice and Request" means a Recombination Notice and Request substantially in the form set forth on the reverse side of the forms of Treasury HITS Certificate and Corporate HITS Certificate, copies of which are attached hereto as Exhibits B and C respectively. " Reference Dealer" means each of the U.S. government securities dealers listed on Schedule I hereto (including any successor thereto) and any other U.S. government securities dealers designated by the Collateral Agent (it being understood that the Collateral Agent may, but shall not be obligated, to designate any one or more such other U.S. government securities dealers); provided that if at any time fewer than three of the entities named on Schedule I are active U.S. government securities dealers and approved counterparties of The Bank of New York Trust Company, any of the Regular Trustees may designate an additional U.S. government securities dealer as a Reference Dealer.

" Regular Trustee" has the meaning specified in the Declaration.

" Remarketing" has the meaning specified in the Supplemental Indenture.

" Roll Date" means, with respect to any Additional Distribution Date, the latest date prior to such Additional Distribution Date that is a maturity date of Qualifying Treasury Securities held in the Collateral Account. " Securities Intermediary" means the Person named as the " Securities Intermediary" in the first paragraph of this Agreement until a successor Securities


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Intermediary shall have become such pursuant to the applicable provisions of this Agreement, and thereafter " Securities Intermediary" shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.

" Securities Registrar" means the Person named as the " Securities Registrar" in the first paragraph of this Agreement until a successor Securities Registrar shall have been appointed by the Corporation pursuant to the applicable provisions of the Declaration, and thereafter " Securities Registrar" shall mean such Person or any subsequent successor who is appointed pursuant to the Declaration by the Corporation. " Stock Purchase Contract" has the meaning specified in the Recitals of this Agreement. " Stock Purchase Contract Agreement" has the meaning specified in the Recitals of this Agreement. " Splitting Notice and Request" means a Splitting Notice and Request substantially in the form set forth on the reverse side of the form of Preferred HITS Certificate, a copy of which is attached hereto as Exhibit A .

" Successful" has the meaning specified in the Supplemental Indenture.

" Supplemental Indenture" means the Thirteenth Supplemental Indenture to the Base Indenture (as defined in the Declaration), dated as of February 16, 2007, between Bank of America Corporation and The Bank of New York Trust Company, N.A.

" Termination Event" has the meaning specified in the Stock Purchase Contract Agreement.

" The Bank of New York Trust Company" has the meaning specified in the first paragraph of this Agreement.

" Trade Date" means, with respect to each Roll Date, the Business Day immediately preceding such Roll Date.

" Trades" means the Treasury/Reserve Automated Debt Entry System maintained by the Federal Reserve Bank of New York pursuant to the Trades Regulations.

" Trades Regulations" means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein, all terms defined in the Trades Regulations are used herein as therein defined.

" Transfer" means (i) in the case of certificated securities in registered form, delivery as provided in Section 8-301(a) of the UCC, endorsed to the transferee or in blank by an effective endorsement, (ii) in the case of Qualifying Treasury Securities, registration of the transferee as the owner of such Qualifying Treasury Securities on Trades and (iii) in the case of security entitlements, including, without limitation, security


7

entitlements with respect to Qualifying Treasury Securities, a securities intermediary indicating by book entry that such security entitlement has been credited to the transferee' s securities account.

" Trust" has the meaning specified in the first paragraph of this Agreement.

" Trust Preferred Securities" has the meaning specified in the Declaration

" UCC" means the Uniform Commercial Code as in effect in the State of New York from time to time.

" Value" means, with respect to any item of Collateral on any date, as to (1) Cash, the face amount thereof, (2) Notes, the aggregate principal amount thereof and (3) Qualifying Treasury Securities, the aggregate principal amount thereof.

ARTICLE II

PLEDGE Section 2.01 Pledge .

Pursuant to Section 2.6 of the Declaration, the Trust (acting through the Property Trustee) hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the Corporation, a continuing first priority security interest in and to, and a lien upon and right of set-off against, all of such Person' s right, title and interest in and to the Collateral to secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by this Agreement.

Section 2.02 Control . The Collateral Agent shall have control of the Collateral Account pursuant to the provisions of Article III . Section 2.03 Termination .

This Agreement and the Pledge created hereby shall terminate upon the satisfaction of the Obligations. Upon receipt by the Collateral Agent from the Corporation of notice of such termination, the Collateral Agent shall, except as otherwise provided herein, Transfer and instruct the Securities Intermediary to Transfer the Collateral to or upon the order of the Property Trustee, free and clear of the Pledge created hereby.


8

ARTICLE III

CONTROL

Section 3.01 Establishment of Collateral Account . The Securities Intermediary hereby confirms that:

(a) the Securities Intermediary has established the Collateral Account;

(b) the Collateral Account is a securities account;

(c) subject to the terms of this Agreement, the Securities Intermediary shall identify in its records the Collateral Agent as the entitlement holder entitled to exercise the rights that comprise any financial asset credited to the Collateral Account;

(d) all property delivered to the Securities Intermediary pursuant to this Agreement or the Stock Purchase Contract Agreement, including any Permitted Investments purchased by the Securities Intermediary from the Proceeds of any Collateral, will be credited promptly to the Collateral Account; and

(e) all securities or other property underlying any financial assets credited to the Collateral Account shall be (i) registered in the name of the Property Trustee and indorsed to the Securities Intermediary or in blank, (ii) registered in the name of the Securities Intermediary or the Collateral Agent or (iii) credited to another securities account maintained in the name of the Securities Intermediary. In no case will any financial asset credited to the Collateral Account be registered in the name of the Property Trustee or specially indorsed to the Property Trustee unless such financial asset has been further indorsed to the Securities Intermediary or in blank.

Section 3.02 Treatment as Financial Assets .

Each item of property (whether investment property, financial asset, security, instrument or Cash) credited to the Collateral Account shall be treated as a financial asset.

Section 3.03 Sole Control by Collateral Agent . Except as provided in Section 8.01 , at all tim
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