EXHIBIT 4.10
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE SUBORDINATED INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE SUBORDINATED INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE SUBORDINATED INDENTURE.
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx)
("XXX"), to the Corporation or its agent for registration of transfer, exchange
or payment, and this Note is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC, and unless any payment
is made to Cede & Co.., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF BANK OF AMERICA
CORPORATION, AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
THIS NOTE IS SUBJECT TO INVESTMENT RISKS.
REGISTERED $ _______________
NUMBER _______ CUSIP ___________
BANK OF AMERICA CORPORATION
CONSUMER PRICE INDEX LINKED INTERNOTE(R)
(Subordinated Indexed Note)
[X] SEE THE ATTACHED INTEREST PAYMENT AMOUNT RIDER for a description of the
INTEREST PAYMENT AMOUNTS and its method of calculation
ISSUE DATE(1):
MATURITY DATE:
CALCULATION AGENT: The Bank of New York
ADDITIONAL TERMS:
MINIMUM DENOMINATIONS: $1,000 and whole multiples of $1,000.
SURVIVOR'S OPTION: [ ] Yes (If checked "Yes," the attached Survivor's Option
Rider is incorporated into this Note.
BANK OF AMERICA CORPORATION, a Delaware corporation (the "Corporation,"
which term includes any successor corporation under the Subordinated Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to CEDE & CO., as nominee for The Depository Trust Company, or its registered
assigns, (i) ______________________ Dollars ($___________) and (ii) that amount
or amounts of interest (the "Interest Payment Amount(s)") according to the terms
of the attached Interest Payment Amount Rider.
Any principal or Interest Payment Amounts not punctually paid or duly
provided for shall be payable as provided in the Subordinated Indenture. In this
Note, "Business Day" means any weekday that is (1) not a legal holiday in New
York, New York or Charlotte, North Carolina and (2) not a day on which banking
institutions in those cities are authorized or required by law or regulation to
be closed.
----------------------
(1) The form provides that interest will accrue from the Issue Date. In the
event a series of Notes is reopened, interest will accrue from the Issue Date
for all tranches of Notes of that series. However, in the event a series of
Notes is reopened, the authentication date for each tranche of Notes will be the
date that tranche of Notes is settled, which may be different from the Issue
Date.
The principal and Interest Payment Amounts on this Note are payable in
immediately available funds in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts at the office or agency of the Corporation designated as provided
in the Subordinated Indenture; provided, however, that the principal or Interest
Payment Amounts may be paid, at the option of the Corporation, by check mailed
to the person entitled thereto at his address last appearing on the registry
books of the Corporation relating to the Notes. Notwithstanding the preceding
sentence, payments of the Interest Payment Amounts payable on the stated
Maturity Date will be made by wire transfer of immediately available funds to a
designated account maintained in the United States upon (i) receipt of written
notice by the Issuing and Paying Agent (as described on the reverse hereof) from
the registered holder hereof not less than one Business Day prior to the due
date of such principal and (ii) presentation of this Note to The Bank of New
York, as Issuing and Paying Agent, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Corporate Trust Office").
For both this Note and Notes issued in certificated form, the payment of
principal of, premium (if any), accrued interest, and any other amounts due on
or after the Maturity Date will be made only upon the presentation and surrender
of such Note at the office of the Trustee or successor thereof, and with respect
to this Note, in accordance with the procedures of DTC.
References herein to "U.S. dollars," "U.S.$," or "$" are to the coin or
currency of the United States at the time of payment is legal tender for the
payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and on the attached Rider(s), which shall have the same
effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or an authenticating agent on behalf of the Trustee by manual signature,
this Note shall not be entitled to any benefit under the Subordinated Indenture
or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed, by manual or facsimile signature, under its corporate seal or a
facsimile thereof.
BANK OF AMERICA CORPORATION
By: ____________________________
[SEAL] Title: Senior Vice President
ATTEST:
By: ___________________________
Title: Assistant Secretary
3
Certificate of Authentication
This is one of the Notes referred to in the within-mentioned Subordinated
Indenture.
Dated: ____________________________
THE BANK OF NEW YORK,
as Trustee
By: ____________________________
Authorized Signatory
4
[Reverse of Note]
BANK OF AMERICA CORPORATION
CONSUMER PRICE INDEX LINKED INTERNOTE(R)
(Subordinated Indexed Note)
SECTION 1. General. This Note is a duly authorized subordinated note of
the Corporation issued under an Indenture dated as of July 1, 2001 (herein
called the "Subordinated Indenture"), between the Corporation and The Bank of
New York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Subordinated Indenture), to which Subordinated
Indenture reference is hereby made for a statement of the respective rights
thereunder of the Corporation, the Trustee, and the holders of the Notes, and
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Trustee initially shall act as Note Registrar, Transfer Agent, and Issuing
and Paying Agent in connection with the Notes.
SECTION 2. Subordination. THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY
THIS NOTE, INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON, TO THE EXTENT
AND IN THE MANNER SET FORTH IN THE SUBORDINATED INDENTURE, IS SUBORDINATE AND
JUNIOR IN RIGHT OF PAYMENT TO ITS OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS,
AS DEFINED IN THE SUBORDINATED INDENTURE, AND EACH HOLDER OF THIS NOTE, BY THE
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS OF THE
SUBORDINATED INDENTURE.
SECTION 3. No Sinking Fund. This Note is not subject to any sinking fund.
SECTION 4. Redemption. This Note is not redeemable prior to the Maturity
Date except for the valid exercise of the Survivors Option, if applicable.(2)
SECTION 5. Defeasance. The provisions of Section 12.05 of the Subordinated
Indenture do not apply to the Notes.
SECTION 6. Events of Default. If an Event of Default (defined in the
Subordinated Indenture as certain events involving the bankruptcy, insolvency or
liquidation of the Corporation) shall occur with respect to this Note, the
principal of, interest accrued on, and other amounts then payable on, this Note
may be declared due and payable in the manner and with the effect provided in
the Subordinated Indenture. THERE IS NO RIGHT OF ACCELERATION PROVIDED IN THE
SUBORDINATED INDENTURE IN CASE OF A DEFAULT IN THE PAYMENT OF INTEREST OR THE
PERFORMANCE OF ANY OTHER COVENANT BY THE CORPORATION.
SECTION 7. Modifications and Waivers. The Subordinated Indenture permits,
with certain exceptions as therein provided, the amendment of the Subordinated
Indenture and the modification of the rights and obligations of the Corporation
and the rights of the holders of the
------------------
(2) This form does not contemplate redemption of the Note prior to the stated
Maturity Date. If the Note may be redeemed prior to the stated Maturity Date,
the form of Note, as used, may be modified to provide for the redemption of the
Note prior to the stated Maturity Date.
5
Notes under the Subordinated Indenture at any time by the Corporation with the
consent of the holders of not less than 66 2/3% in aggregate principal amount of
the Notes then outstanding and all other Notes then outstanding under the
Subordinated Indenture and affected by such amendment and modification. The
Subordinated Indenture also contains provisions permitting the holders of a
majority in principal amount of this Note then outstanding, on behalf of all of
the holders of this Note, to waive any past default under the Subordinated
Indenture and its consequences, except a default (1) in the payment of principal
of, premium, if any, or any interest on any Note; or (2) in respect of a
covenant or provision of the Subordinated Indenture that cannot be modified or
amended without the consent of the holder of each Note then outstanding and the
holder of any other notes issued, authenticated and delivered under the
Subordinated Indenture and affected. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
Upon any such waiver, such default shall cease to exist, and any default
or event of default arising therefrom shall have been cured, for every purpose
of the Subordinated Indenture, but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
No recourse shall be had for the payment of the principal of, premium on
(if any), interest, or other amounts payable on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Subordinated Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer, or director, as such, past, present, or
future, of the Corporation or any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for issue hereof, expressly
waived and released.
SECTION 8. Obligations Unconditional. No reference herein to the
Subordinated Indenture and no provision of this Note or of the Subordinated
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of, premium (if any), interest,
and other amounts payable on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
SECTION 9. Authorized Denominations. The Notes are issuable only as
registered Notes without coupons, and unless otherwise set forth on the face of
this Note, only in denominations of $1,000 and whole multiples of $1,000. As
provided in the Subordinated Indenture, and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate principal amount
of Notes of different authorized denominations, as requested by the holder
surrendering the same.
SECTION 10. Registration of Transfer. As provided in the Subordinated
Indenture and subject to certain limitations as therein set forth, the transfer
of this Note is registrable in the register maintained by the Note Registrar,
upon surrender of this Note for registration of transfer at the office or agency
of the Corporation designated by it pursuant to the Subordinated Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
6
satisfactory to the Corporation and the Trustee or the Note Registrar requiring
such written instrument of transfer duly executed by, the registered holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
This Note is being issued by means of a book-entry system with no physical
distribution of certificates to be made except as provided in the Subordinated
Indenture. The book-entry system maintained by The Depository Trust Company
("DTC") will evidence ownership of the Notes, with transfers of ownership
effected on the records of DTC and its participants pursuant to rules and
procedures established by DTC and its participants. The Corporation will
recognize Cede & Co., as nominee of DTC, while the registered holder of the
Notes, as the owner of the Notes for all purposes, including payment of
principal (premium, if any) and interest, notices and voting. Transfer of
principal (premium, if any) and interest to participants of DTC will be the
responsibility of DTC, and transfer of principal, premium (if any), interest,
and other amounts payable to beneficial owners of the Notes by participants of
DTC will be the responsibility of such participants and other nominees of such
beneficial owners. So long as the book-entry system is in effect, the selection
of any Notes to be redeemed will be determined by DTC pursuant to rules and
procedures established by DTC and its participants. The Corporation will not be
responsible or liable for such transfers or payments or for maintaining,
supervising or reviewing the records maintained by DTC, its participants, or
persons acting through such participants.
This Note may be exchanged in whole, but not in part, for security-printed
certificated Notes, only if (i) DTC notifies the Corporation or the Trustee that
it is unwilling or unable to continue as depository for this Note in global form
or if at any time DTC shall no longer be eligible under the Senior Indenture to
authenticate and deliver the Note, and in either such case, a successor
depository is not appointed by the Corporation within 90 calendar days, or (ii)
the Corporation executes and delivers to the Trustee a written notification that
this Note in global form shall be so exchangeable, or (iii) an Event of Default
occurs and is continuing with respect to this Note in global form. In any such
instance, an owner of a beneficial interest in this Note will be entitled to
physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Unless
otherwise set forth above, Notes so issued in certificated form will be issued
in authorized denominations only and will be issued in registered form only,
without coupons.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax, assessment, or other governmental charge, including, without
limitation, any withholding tax, payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Corporation, the Trustee, the Issuing and Paying Agent and any agent of the
Corporation, the Trustee or any Issuing and Paying Agent may treat the person in
whose name this Note is registered as the owner hereof for all purposes.
7
SECTION 11. Defined Terms. All terms used in this Note which are not
defined herein but are defined in the Subordinated Indenture shall have the
meanings assigned to them in the Subordinated Indenture.
SECTION 12. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS.
8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT--.............as Custodian for.............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
...............................
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ____________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing __________________________________ Attorney to transfer said Note on
the books of the Corporation, with full power of substitution in the premises.
Dated: ________________________ _________________________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed.
9
BANK OF AMERICA CORPORATION
CONSUMER PRICE INDEX LINKED INTERNOTE(R)
(Subordinated Indexed Note)
INTEREST PAYMENT AMOUNT RIDER
GENERAL
This Note is issued under the Subordinated Indenture, as described in the
Prospectus dated October __, 2004 and is designated as the "Bank of America
Corporation Consumer Price Index Linked InterNotes(R), due _______ ___, 20__."
Certain capitalized terms used herein have the meanings ascribed to them in the
Prospectus.
PAYMENT AT MATURITY; INTEREST PAYMENT AMOUNTS
At maturity, the holder of the Note will receive the principal amount of
this Note. Interest, to the extent payable, will be paid monthly, in arrears, on
the tenth calendar day of each month, beginning __________ 10, 20__, and on the
Maturity Date. These dates are referred to as "interest payment dates," and each
monthly period that ends on the day prior to an interest payment date is
referred to as an "interest period."
Interest will accrue on this Note for the first interest period at the
rate of [____%] per annum. For each subsequent monthly interest period, interest
on this Note will be paid at a rate determined according to the Percentage
Change in the Consumer Price Index ("CPI") over a one-year period, plus [____%]
per annum. In no event will the interest rate be less than 0.00% per annum.
Interest will be payable to the person in whose name this Note is
registered at the close of business 15 calendar days prior to each interest
payment date. These dates are referred to as the "regular record dates." In
addition, interest will be payable at maturity or, if applicable, in connection
with the exercise of the Survivor's Option to the holder of this Note at the
close of business on the Maturity Date or the applicable interest payment date,
respectively.
The Calculation Agent will determine any amount of interest for each
$1,000 principal amount of this Note due on any interest payment date. Interest
on this Note will be computed and paid on the basis of a 360-day year consisting
of twelve 30-day months.
Subsequent to the first interest payment date, the Calculation Agent will
determine the interest rate applicable for the interest period on each interest
determination date, which is the fifth Business Day prior to an interest payment
date. The interest per $1,000 principal amount of this Note for a given interest
period will be rounded to the nearest xxxxx and will be determined by the
following formula:
[Percentage Change in the CPI + ___%] x $1,000 x [30/360]
10
where the "Percentage Change in the CPI" for any interest period means a number,
rounded to the nearest ten-thousandth and then expressed as a percentage, equal
to:
(Ref CPI(n)/Ref CPI(n-12)-1)
In the equation above:
(a) Ref CPI(n) for any calendar month means the Consumer Price Index for
the third preceding calendar month. For example, the Ref CPI(n) applicable to a
June 10 interest payment date is the Consumer Price Index for March of the same
year, which is reported by the Bureau of Labor Statistics in April of that year;
and
(b) Ref CPI(n-12) for any calendar month means the Consumer Price Index
for the calendar month fifteen months prior to the current interest payment
date. In the example above, Ref CPI(n-12) would be the Consumer Price Index for
March in the preceding year, as published by the Bureau of Labor Statistics in
April of the preceding year.
The result will be rounded to the nearest ten-thousandth of a decimal
place and then expressed as a percentage.
DISCONTINUANCE OF THE CONSUMER PRICE INDEX; ALTERATION OF METHOD OF CALCULATION
If the Bureau of Labor Statistics revises the Consumer Price Index for a
particular month, the Consumer Price Index for the previously reported month
will continue to be used to calculate interest payments on the notes.
In the event that the Consumer Price Index is (1) discontinued, (2) in the
judgment of the Secretary of the United States Treasury, fundamentally altered
in a manner which is materially adverse to the interests of investors in U.S.
Treasury Inflation-Linked Treasury Notes, as described in 61 Federal Register
50924-01, the "Reference Treasury Securities" or (3) in the judgment of the
Secretary of the United States Treasury, altered by legislation or executive
order of the President of the United States in a manner which is materially
adverse to the interests of investors in the Reference Treasury Securities, the
United States Treasury has indicated in its Appendix B to 31 Code of Federal
Regulations Part 356 that, after consulting with the Bureau of Labor Statistics,
or any successor agency, it will substitute an appropriate alternate index for
the Consumer Price Index for the Reference Treasury Securities. In that event,
the alternate index selected by the United States Treasury will replace the
Consumer Price Index going forward and the index as so calculated and published
by the United States Treasury or other applicable agency will be deemed to be a
"Substitute Index."
In the event that (1) the Consumer Price Index for a particular month is
not reported; (2) the Consumer Price Index for the base reference period is no
longer published or (3) the United States Treasury has failed to substitute an
appropriate alternate index for the Consumer Price Index in the circumstances
contemplated in the preceding paragraph, in each case, as of the interest
determination date preceding an interest payment date, the Consumer Price Index
(or
11
Substitute Index) for that interest payment date shall be the Consumer Price
Index (or Substitute Index) in effect on the interest payment date last
preceding the current interest payment date.
ROLE OF THE CALCULATION AGENT
The Calculation Agent has the sole discretion to make all determinations
regarding the calculation of interest. Absent manifest error, all determinations
of the Calculation Agent will be final and binding on the holder of this Note
and the Corporation, without any liability on the part of the Calculation Agent.
The Corporation has initially appointed The Bank of New York as the
Calculation Agent, but the Corporation may change the Calculation Agent at any
time without notifying the holder of this Note.
12
[If Applicable]
BANK OF AMERICA CORPORATION
CONSUMER PRICE INDEX LINKED INTERNOTE(R)
(Subordinated Indexed Note)
SURVIVOR'S OPTION RIDER
If the Survivor's Option is applicable to this Note, the Representative
(defined below) of a deceased beneficial owner of this Note shall be entitled to
repayment of this Note following the death of the beneficial owner (a
"Survivor's Option"). Unless specifically provided on the face of this Note, the
Survivor's Option may not be exercised unless the Note was acquired by the
beneficial owner at least six months prior to such election.
If the Survivor's Option is applicable to this Note, upon the valid
exercise of the Survivor's Option, the Corporation shall repay the Note (or
portion thereof), properly tendered for repayment by or on behalf of the person
(the "Representative") that has authority to act on behalf of the deceased
beneficial owner of a Note under the laws of the appropriate jurisdiction
(including, without limitation, the personal representative or executor of the
deceased beneficial owner or the surviving joint owner with the deceased
beneficial owner) at a price equal to 100% of the principal amount of the
deceased beneficial owner's beneficial interest in such Note plus accrued and
unpaid interest to the date of such repayment, subject to the following
limitations:
(a) The Corporation may, in its sole discretion, limit the aggregate
principal amount of Notes as to which exercises of the Survivor's
Option shall be accepted by the Corporation from all Representatives
of deceased beneficial owners in any calendar year (the "Annual Put
Limitation") to an amount equal to the greater of $2,000,000 or 2%
of the Outstanding principal amount of all notes issued under the
Subordinated Indenture as of the end of the most recent calendar
year, or such greater amount as the Corporation in its sole
discretion may determine for any calendar year, and may limit the
aggregate principal amount of Notes as to which exercises of the
Survivor's Option shall be accepted by the Corporation from the
Representative of any individual deceased beneficial owner of Notes
in any calendar year to $250,000, or such greater amount as the
Corporation in its sole discretion may determine for any calendar
year (the "Individual Put Limitation").
(b) The Corporation shall not make principal repayments pursuant to
exercises of the Survivor's Option in amounts that are less than
$1,000, and the principal amount of such Note remaining Outstanding
after repayment pursuant to exercise of the Survivor's Option must
be at least $1,000. If, however, the original principal amount of a
Note was less than $1,000, the authorized representative of the
deceased beneficial owner of such Note may exercise the Survivor's
Option, but only for the full principal amount of such Note.
(c) Any Note (or portion thereof) tendered pursuant to a valid exercise
of the Survivor's Option may not be withdrawn.
13
Each Note (or portion thereof) that is tendered pursuant to valid exercise
of the Survivor's Option shall be accepted in the order that such Note was
received by the Trustee, except for any Note (or portion thereof) the acceptance
of which would contravene (i) the Annual Put Limitation, if applied, or (ii) the
Individual Put Limitation, if applied, with respect to the relevant individual
deceased beneficial owner. If, as of the end of any calendar year, the aggregate
principal amount of Notes (or portions thereof) that have been tendered pursuant
to the valid exercise of the Survivor's Option during such year has exceeded
either the Annual Put Limitation, if applied, or the Individual Put Limitation,
if applied, for such year, any exercise(s) of the Survivor's Option with respect
to Notes (or portions thereof) not accepted during such calendar year because
such acceptance would have contravened either such limitation, if applied, shall
be deemed to be tendered in the following calendar year in the order all such
Notes (or portions thereof) were originally tendered. Any Note (or portion
thereof) accepted for repayment pursuant to exercise of the Survivor's Option
shall be repaid on the first Interest Payment Date that occurs 20 or more
calendar days after the date of such acceptance. In the event that a Note (or
any portion thereof) tendered for repayment or repurchase pursuant to valid
exercise of the Survivor's Option is not accepted, the Trustee shall deliver a
notice by first-class mail to the registered holder thereof, at its last known
address as indicated in the Note Register, that states the reason such Note (or
portion thereof) has not been accepted for payment.
In order for a Survivor's Option to be validly exercised with respect to
any Note (or portion thereof), the Trustee must receive from the Representative
(i) a written request for repayment signed by the Representative, and such
signature must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in the
United States, (ii) tender of a Note (or portion thereof) to be repaid, (iii)
appropriate evidence satisfactory to the Trustee that (A) the deceased was the
beneficial owner of such Note at the time of death and the interest in such note
was acquired by the deceased beneficial owner at least six months prior to the
request for repayment, (B) the death of such beneficial owner has occurred, and
the date of such death, and (C) the Representative has authority to act on
behalf of the deceased beneficial owner, (iv) if applicable, a properly executed
assignment or endorsement, (v) if the beneficial ownership interest in such Note
is held by a nominee of the deceased beneficial owner, a certificate
satisfactory to the Trustee from such nominee attesting to the deceased's
beneficial ownership of such Note, (vi) tax waivers and such other instruments
or documents that the Trustee reasonably requires in order to establish the
validity of the beneficial ownership of the Note and the claimant's entitlement
to payment and (vii) any additional information the Trustee requires to evidence
satisfaction of any conditions to the exercise of such Survivor's Option or to
document beneficial ownership or authority to make the election and to cause the
repayment of such Note. Subject to the Corporation's right hereunder to limit
the aggregate principal amount of Notes as to which exercises of the Survivor's
Option shall be accepted in any one calendar year, all questions as to the
eligibility or validity of any exercise of the Survivor's Option will be
determined by the Trustee, in its sole discretion, which determination shall be
final and binding on all parties.
The death of a person holding a beneficial ownership interest in a Note as
a joint tenant or tenant by the entirety with another person, or as a tenant in
common with the deceased holder's spouse, will be deemed the death of the
beneficial owner of the Note, and the entire
14
principal amount of the Note so held shall be subject to repayment. However, the
death of a person holding a beneficial ownership interest in a note as tenant in
common with a person other than such deceased holder's spouse will be deemed the
death of a beneficial owner only with respect to the deceased person's interest
in the Note and only the deceased beneficial owner's percentage interest in the
principal amount of the Note will be subject to repayment. The death of a person
who, during his or her lifetime, was entitled to substantially all of the
beneficial ownership interests in a Note will be deemed the death of the
beneficial owner of such Note for purposes of this provision, regardless of
whether such beneficial owner was the registered holder of the Note, if such
beneficial ownership interest can be established to the satisfaction of the
Trustee. Such beneficial ownership interest will be deemed to exist in typical
cases of nominee ownership, ownership under the Uniform Transfers to Minors Act
or Uniform Gifts to Minors Act, community property or other joint ownership
arrangements between a husband and wife. In addition, the beneficial ownership
interest will be deemed to exist in custodial and trust arrangements where one
person has all of the beneficial ownership interest in the Note during his or
her lifetime.
For purposes of the Survivor's Option, a person shall be deemed to have
had a "beneficial ownership interest" in a Note if such person had the right,
immediately prior to such person's death, to receive the proceeds from the
disposition of such Note, as well as the right to receive payment of the
principal of such Note.
For Notes represented by a Global Note, the Depository or its nominee
shall be the holder of such Note and therefore shall be the only entity that can
exercise the Survivor's Option for such Note. To obtain repayment pursuant to
exercise of the Survivor's Option with respect to such Note, the Representative
must provide to the broker or other entity through which the beneficial interest
in such Note is held by the deceased beneficial owner (i) the documents
described in the second preceding paragraph and (ii) instructions to such broker
or other entity to notify the Depository of such Representative's desire to
obtain repayment pursuant to exercise of the Survivor's Option. Such broker or
other entity shall provide to the Trustee (i) the documents received from the
Representative referred to in clause (i) of the preceding sentence and (ii) a
certificate satisfactory to the Trustee from such broker or other entity stating
that it represents the deceased beneficial owner. Such broker or other entity
shall be responsible for disbursing any payments it receives pursuant to
exercise of the Survivor's Option to the appropriate Representative.
15
