been
delivered to BofA, in such quantities as BofA shall reasonably have requested,
on or prior to the date of delivery;
(b) the form and content of the Registration Statement and the Prospectus
(including, without limitation, any sections describing the plan of
distribution) shall be satisfactory to BofA;
(c) as of or prior to the date of delivery, BofA and its agents shall have been
afforded a reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for underwritten offerings of equity
securities by issuers of comparable size to Counterparty and the results of such
investigation are satisfactory to BofA, in its good faith discretion; and
(d) as of the date of delivery, an agreement (the "Underwriting Agreement")
shall have been entered into with BofA in connection with the public resale of
the Registered Payment Shares by BofA substantially similar to underwriting
agreements customary for underwritten offerings of equity securities by issuers
of comparable size to Counterparty, in form and substance satisfactory to BofA,
which Underwriting Agreement shall include, without limitation, provisions
substantially similar to those contained in such underwriting agreements
relating, without limitation, to the indemnification of, and contribution in
connection with the liability of, BofA and its Affiliates and the provision of
customary opinions, accountants' comfort letters and lawyers' negative assurance
letters.
4. If Counterparty delivers Restricted Payment Shares pursuant to paragraph 2
above:
(a) All Restricted Payment Shares shall be delivered to BofA (or any Affiliate
of BofA designated by BofA) pursuant to the exemption from the registration
requirements of the Securities Act provided by Section 4(a)(2) thereof.
(b) As of or prior to the date of delivery, BofA (or any Affiliate of BofA
designated by BofA) and any potential purchaser of any such Restricted Payment
Shares from BofA (or any Affiliate of BofA designated by BofA) identified by
BofA shall be afforded a commercially reasonable opportunity to conduct a due
diligence investigation with respect to Counterparty customary in scope for
private placements of equity securities by issuers of comparable size to
Counterparty (including, without limitation, the right to have made available to
them for inspection all financial and other records, pertinent corporate
documents and other information reasonably requested by them); provided that
Counterparty may require that BofA or such Affiliate or such potential purchaser
sign a customary confidentiality agreement with Counterparty in form and
substance reasonably satisfactory to Counterparty prior to and in connection
with such investigation.
(c) As of the date of delivery, Counterparty shall enter into an agreement (a
"Private Placement Agreement") with BofA (or any Affiliate of BofA designated by
BofA) in connection with the private placement of such Restricted Payment Shares
by Counterparty to BofA (or any such Affiliate) and the private resale of such
Restricted Payment Shares by BofA (or any such Affiliate), substantially similar
to private placement purchase agreements customary for private placements of
equity securities by issuers of comparable size to Counterparty, in form and
substance commercially reasonably satisfactory to BofA, which Private Placement