Exhibit 8(j)(2)
BANK OF AMERICA CORPORATION GUARANTEE
GUARANTEE dated as of [______________], 2002 by Bank of America
Corporation (the "Guarantor"), in favor of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Principal Protected
Trust on behalf of its series ▇▇▇▇▇▇▇ ▇▇▇▇▇ Basic Value Principal Protected Fund
(the "Guaranteed Party").
To induce the Guaranteed Party to enter into the Financial Warranty
Agreement (the "Financial Warranty Agreement"), dated as of [____________], 2002
among the Guaranteed Party, Fund Asset Management, L.P., as investment adviser,
and Main Place Funding, LLC, as financial warrantor ("Warranty Provider") and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor hereby irrevocably and unconditionally guarantees to
the Guaranteed Party, with effect from the date of the Financial Warranty to be
issued by Warranty Provider under the Financial Warranty Agreement (the
"Financial Warranty"), all present and future obligations of Warranty Provider
to the Guaranteed Party arising out of the Financial Warranty Agreement and the
Financial Warranty; provided, that the Guarantor does not guarantee hereunder
any obligations of Warranty Provider arising out of other transactions not
governed by the Financial Warranty Agreement or the Financial Warranty. Upon
failure of Warranty Provider punctually to fulfill any such obligation, and upon
written demand by the Guaranteed Party to the Guarantor, the Guarantor agrees to
fulfill, or cause to be fulfilled, to the extent such obligation is not
performed, the performance of such obligation; provided, that delay by the
Guaranteed Party in giving such demand shall in no event affect the Guarantor's
obligations under this Guarantee; provided further, that any single or partial
exercise by the Guaranteed Party of any right, remedy or power granted hereunder
to the Guaranteed Party shall not impair or waive any such right, remedy or
power of the Guaranteed Party. Each and every right, remedy and power hereby
granted to the Guaranteed Party or allowed it by law or by another agreement
shall be cumulative and not exclusive of any other, and may be exercised by the
Guaranteed Party at any time or from time to time.
The Guarantor hereby agrees that its obligations hereunder shall be
continuing and unconditional and will not be discharged except by full and
complete satisfaction of all present and future obligations of Warranty Provider
to the Guaranteed Party arising out of the Financial Warranty Agreement and the
Financial Warranty, irrespective of any claim as to the validity, regularity or
enforceability of the Financial Warranty Agreement or the Financial Warranty, or
the lack of authority of Warranty Provider to execute the Financial Warranty
Agreement or the Financial Warranty; or any change in or amendment to the
Financial Warranty Agreement or the Financial Warranty; or any waiver or consent
by the Guaranteed Party with respect to any provisions thereof; or the absence
of any action to enforce the terms of the Financial Warranty Agreement or the
Financial Warranty, or the recovery of any judgment against Warranty Provider or
of any action to enforce a judgment against Warranty Provider under the terms of
the Financial Warranty Agreement or the Financial Warranty or any other
circumstance relating to the Guarantor's obligations hereunder that might
otherwise constitute a legal or equitable discharge or defense of this
Guarantee.
The Guarantor hereby waives diligence, presentment, demand on
Warranty Provider for delivery or otherwise, filing of claims, requirement of a
prior proceeding against Warranty Provider and protest or notice. This Guarantee
is a guarantee of performance and not
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of collection. If at any time any delivery or payment by Warranty Provider under
the Financial Warranty Agreement or the Financial Warranty is rescinded or must
be otherwise restored or returned by the Guaranteed Party upon the receivership,
insolvency, bankruptcy or reorganization of Warranty Provider or the Guarantor
or otherwise, the Guarantor's obligations hereunder with respect to such
delivery or payment shall be reinstated upon such restoration or return being
made by the Guaranteed Party.
The Guarantor agrees to pay on demand all fees and out of pocket
expenses (including the reasonable fees and expenses of any Guaranteed Party's
counsel) in any way relating to the enforcement or protection of the rights of
the Guaranteed Party hereunder; provided, that the Guarantor shall not be liable
for any expenses of the Guaranteed Party if no delivery or payment under this
Guarantee is due. The Guarantor reserves the right to assert defenses that
Warranty Provider may have to any delivery or payment to the Guaranteed Party
under the Financial Warranty Agreement or the Financial Warranty other than
defenses arising from the bankruptcy or insolvency of Warranty Provider and
other defenses expressly waived hereby.
The Guarantor represents to the Guaranteed Party as of the date
hereof that:
1. It is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has full power and legal right to execute
and deliver this Guarantee and to perform the provisions of this Guarantee on
its part to be performed.
2. Its execution, delivery and performance of this Guarantee have been and
remain duly authorized by all necessary corporate action and do not contravene
any provision of its certificate of incorporation or by-laws, as amended, or any
law, regulation or contractual restriction binding on it or its assets.
3. All consents, licenses, authorizations, approvals and clearances
(including, without limitation, any necessary exchange control approval) and
notifications, reports and registrations requisite for its due execution,
delivery and performance of this Guarantee have been obtained from or, as the
case may be, filed with the relevant governmental authorities having
jurisdiction and remain in full force and effect and all conditions thereof have
been duly complied with and no other action by, and no notice to or filing with,
any governmental authority having jurisdiction is required for such execution,
delivery or performance.
4. This Guarantee is its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights or by general equity
principles.
5. By accepting this Guarantee, the Guaranteed Party agrees that the
Guarantor shall be subrogated to all rights of the Guaranteed Party against
Warranty Provider in respect of any delivery or payment made by the Guarantor
pursuant to this Guarantee; provided, however, that the Guarantor shall not
exercise or be entitled to receive any payments arising out of, or based upon
such right of subrogation until all obligations under the Financial Warranty
Agreement and the Financial Warranty shall have been paid in full to the
Guaranteed Party.
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Neither the Guarantor nor the Guaranteed Party may assign its
rights, interests or obligations hereunder to any other person (except by
operation of law) without the prior written consent of the Guarantor or the
Guaranteed Party, as the case may be.
All notices or demands on the Guarantor shall be deemed effective
when received, shall be in writing and shall be delivered by hand or by
registered mail, or by facsimile transmission promptly confirmed by registered
mail, addressed to the Guarantor at:
Bank of America Corporation
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or facsimile number as the Guarantor shall have
notified the Guaranteed Party in a written notice delivered to the Guaranteed
Party in accordance with the Financial Warranty Agreement.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York (including Section 5-1401 of the New York
General Obligations Laws but excluding all other choice of law and conflicts of
law rules). All capitalized terms not otherwise defined herein shall have the
respective meanings assigned to them in the Financial Warranty Agreement.
BANK OF AMERICA CORPORATION
By: _____________________________
Name:
Title:
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