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EXHIBIT 1.1
AMENDED AND RESTATED
SELLING AGENT AGREEMENT
by and among
Bank of America Corporation
and the
Agents named herein
[___________], 2001
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[__________], 2001
To the Agents listed on
the signature page hereto.
Bank of America Corporation, a Delaware corporation (the
"Company") proposes to issue and sell up to $5,000,000,000 aggregate principal
amount of its Bank of America Corporation InterNotes(SM) due nine months or more
from date of issue (the "Notes"). The Notes may be Senior Notes or Subordinated
Notes. The Senior Notes are to be issued pursuant to an amended and restated
indenture dated as of July 1, 2001 between the Company and The Bank of New York
(the "Senior Trustee") (the "Senior Indenture"). The Subordinated Notes are to
be issued pursuant to an amended and restated indenture dated as of July 1,
2001 between the Company and The Bank of New York (the "Subordinated Trustee")
(the "Subordinated Indenture"). The Senior Trustee and the Subordinated Trustee
are collectively referred to herein as the "Trustee," and the Senior Indenture
and the Subordinated Indenture are collectively referred to herein as the
"Indentures." The terms of the Notes are described in the Prospectus referred to
below.
The parties to this Amended and Restated Selling Agent
Agreement (the "Agreement") originally entered into a Selling Agent Agreement,
dated January 22, 2001, and now wish to amend and restate such agreement as
provided herein.
Subject to the terms and conditions contained in this
Agreement, the Company hereby (1) appoints each of you as agent of the Company
("Agent") for the purpose of soliciting offers to purchase the Notes and each of
you hereby agree to use your reasonable best efforts to solicit offers to
purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify and in accordance with
the terms hereof, and after consultation with Incapital LLC (the "Purchasing
Agent") and (2) agrees that whenever the Company determines to sell Notes
pursuant to this Agreement, such Notes shall be sold pursuant to a Terms
Agreement (as defined herein) relating to such sale in accordance with the
provisions of Section V hereof between the Company and the Purchasing Agent,
with the Purchasing Agent purchasing such Notes as principal for resale to other
Agents or dealers (the "Selected Dealers"), each of whom will purchase as
principal. The Company reserves the right to enter into agreements substantially
identical hereto with other agents.
I.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement No. 333-[______] relating to the
Notes and the offering thereof, from time to time, in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the SEC, and the Indentures have been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the 1933 Act, including all documents incorporated therein by
reference, as from time to time amended or supplemented, including any Pricing
Supplement (as defined herein), are referred to herein as the "Registration
Statement" and the "Prospectus," respectively.
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II.
The Agents' obligations hereunder are subject to the following
conditions:
(a) 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) The opinion of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.,
counsel to the Company, to the effect of paragraphs (i) and (iv)
through (x) below, and the opinion of Xxxx X. Xxxxxxx, Executive Vice
President and General Counsel to the Company (or any deputy or
associate general counsel to the Company), to the effect of paragraphs
(ii) and (iii) below:
(i) The Company 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; Bank of America, N. A. (the "Principal Subsidiary
Bank") is a national banking association formed under the laws
of the United States and authorized thereunder to transact
business;
(ii) Each of the Company and the 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 Company or the Principal Subsidiary, as
the case may be, is required to be so qualified or licensed;
(iii) All the outstanding shares of capital stock
of the Principal Subsidiary Bank have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, 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. ss.1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of
public policy underlying all such laws);
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(v) Each of the Indentures has been duly
authorized, executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act, as applicable,
and constitutes a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, and 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 Company entitled to the
benefits of such Indenture, subject (with respect to the
applicable Indenture and the Notes) as to enforcement of
remedies, 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.ss.1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy underlying
all such laws;
(vi) The forms of Note attached to the
Secretary's Certificate delivered to the Agents conform in all
material respects to the description thereof contained in the
Prospectus, as supplemented or amended;
(vii) The Registration Statement has become
effective under the 1933 Act; counsel is without knowledge
that any stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened; 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 and the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the respective rules thereunder;
(viii) Counsel is without knowledge that (1) there
is any pending or threatened action, suit or proceeding before
or by any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Prospectus, or (2) any franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit to the Registration Statement, is not so described or
filed as required;
(ix) Neither the issuance and sale of the Notes,
the consummation of any other of the transactions contemplated
by this Agreement nor the fulfillment of the terms thereof
will conflict with, result in a breach of, or constitute a
default under any provision of applicable law or the
Certificate of Incorporation or the
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Bylaws of the Company, each as amended to date, or the terms
of any material indenture or other agreement or instrument
known to such counsel and to which the Company or the
Principal Subsidiary Bank is a party or bound, or any order or
regulation known to such counsel to be applicable to the
Company or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or the
Principal Subsidiary Bank; and
(x) No authorization, order, approval or consent
of, or filing with, any court or governmental authority or
agency is necessary or required on behalf of the Company in
connection with the sale of the Notes hereunder, except such
as have been obtained under the 1933 Act or the General Rules
and Regulations under the 1933 Act (the "1933 Act
Regulations"), and such as may be required under foreign or
state securities or insurance laws in connection with the
distribution of the Notes.
In rendering this opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of North Carolina or the United States, or the General Corporate
Law of Delaware, to the extent deemed proper and specified in such
opinion, upon counsel for the Agents or upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agents; and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of
the Company and the Principal Subsidiary Bank and public officials.
(2) The opinion of Stroock & Stroock & Xxxxx LLP, counsel
to the Agents, covering the matters referred to in subparagraph (1)
under the subheadings (iv) through (vii), inclusive, above.
In rendering the opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, to the extent deemed proper and
specified in such opinion, upon counsel for the Company or upon the
opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Company; and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Principal Subsidiary Bank and public
officials.
(3) In giving their opinions required by subsections
(a)(1) and (a)(2) of this Section, but without opining in connection
therewith, Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P. and Stroock & Stroock &
Xxxxx LLP shall each additionally state that although they have not
independently verified, are not passing upon and assume no
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, counsel has no
reason to believe that the Registration Statement or any amendment
thereof at the time it became effective and as of the date of such
opinion, or that the Prospectus, as amended or supplemented, as of the
date of such opinion, contained any untrue statement of a material fact
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or omitted 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.
(b) On the date hereof, the Agents shall have received a
certificate of any Senior Vice President or Treasurer or any other authorized
officer of the Company satisfactory to the Agents, dated as of the date hereof,
to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that to the best
of their knowledge (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise, earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus, as supplemented
or amended, (ii) the other representations and warranties of the Company
contained in this Agreement are true and correct in all material respects with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the date of such certificate, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened by the SEC and (v) no
litigation or proceeding shall be threatened or pending to restrain or enjoin
the issuance or delivery of the Notes, or which in any way affects the validity
of the Notes.
(c) On the date hereof, the Agents shall have received a letter
from PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the General Rules and Regulations under the 1934 Act (the "1934 Act
Regulations").
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board of directors, executive committee and
audit committee of the Company and the boards of directors and
executive committees of its subsidiaries as set forth in the
minute books through a specified date not more than five
business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as
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described in FAS No. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial statements
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus and reading the unaudited interim financial data,
if any, for the period from the date of the latest balance
sheet included or incorporated by reference in the
Registration Statement and Prospectus to the date of the
latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding the specific items for which representations
are requested below;
nothing has come to their attention as a result of the foregoing procedures that
caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in the
Registration Statement and Prospectus, do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements, included
or incorporated by reference in the Registration Statement and
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five business
days prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than scheduled
repayments of such debt) or any decreases in stockholders' equity of
the Company and the subsidiaries on a consolidated basis as compared
with the amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of the latest available
financial data to a specified date not more than five business days
prior to the delivery of such letter, there was any change in the
capital stock or the long-term debt (other than scheduled repayments of
such debt) or any decreases in stockholders' equity of the Company and
the subsidiaries on a consolidated basis, except in all instances for
changes or decreases which the Registration Statement and Prospectus
discloses have occurred or may occur, or PricewaterhouseCoopers shall
state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers has
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Agents and agreed to by PricewaterhouseCoopers, and has found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
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(d) On the date hereof and on each Settlement Date (as defined
herein) with respect to any purchase of Notes by the Purchasing Agent, counsel
to the Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Purchasing Agent and to counsel to the Agents.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the SEC
and (iii) there shall have been no material adverse change not in the ordinary
course of business in the consolidated financial condition of the Company and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus, each of which conditions shall be met on the date
of the Terms Agreement and on the corresponding Settlement Date. Further, if
specifically called for by any written agreement by the Purchasing Agent,
including a Terms Agreement, to purchase Notes as principal, the Purchasing
Agent's obligations hereunder and under such agreement, shall be subject to such
additional conditions, including those set forth in clauses (a), (b) and (c)
above, as agreed to by the parties, each of which such agreed conditions shall
be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained,
the Company covenants as follows:
(a) The Company 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 Company 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.
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(b) The Company 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 0000 Xxx) 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 your counsel reasonably object.
(c) The Company will deliver to the Agents without charge, a copy
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. The Company 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 Company 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 Company with the SEC pursuant to the 1934 Act as soon as
practicable after the filing thereof.
(d) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a pricing supplement with
respect to such Notes in substantially the form attached as Exhibit D (a
"Pricing Supplement") 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) 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 your counsel or counsel for the Company, 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 the Agents to
cease the solicitation of offers to purchase the Notes and to cease sales of any
Notes by the Purchasing Agent, and the Company 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.
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(f) 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 interim financial statement information related to the Company 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 Company
shall furnish promptly 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) 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 Company for the preceding fiscal year, the Company 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) The Company 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 thereby, an earnings statement (in form complying with the
provisions of Section 11(a) and of Rule 158 under the 0000 Xxx) covering each
twelve-month period beginning, in each case, not later than the first day of the
Company'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) The Company will endeavor 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 Company 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
Company 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
Company will promptly advise the Agents of the receipt by the Company 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) The Company, 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) The Company shall not be required to comply with the
provisions of subsections (e), (f) or (g) of this Section or the provisions of
Sections VII(b), (c) and (d) during any period from the time (i) the Agents have
suspended solicitation of purchases of the Notes pursuant to a direction from
the Company and (ii) the Agents shall not then hold any Notes as principal
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purchased from the Purchasing Agent to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
agree for the Purchasing Agent to purchase Notes as principal.
IV.
(a) The Agents propose to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus and upon
the terms communicated to the Agents from time to time by the Company or the
Purchasing Agent, as the case may be. For the purpose of such solicitation the
Agents will use the Prospectus as then amended or supplemented which has been
most recently distributed to the Agents by the Company, and the Agents will
solicit offers to purchase only as permitted or contemplated thereby and herein
and will solicit offers to purchase the Notes only as permitted by the 1933 Act
and the applicable securities laws or regulations of any jurisdiction. The
Company reserves the right, in its sole discretion, to suspend solicitation of
offers to purchase the Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally) from the
Company, the Agents will suspend promptly solicitation of offers to purchase
until such time as the Company has advised the Agents that such solicitation may
be resumed.
Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in denominations of
$1,000 or more (in multiples of $1,000). The Agents are not authorized to
appoint subagents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein. The Company agrees to
pay the Purchasing Agent, as consideration for soliciting offers to purchase
Notes pursuant to a Terms Agreement, a concession in the form of a discount
equal to the percentages of the initial offering price of each Note actually
sold as set forth in Exhibit A hereto (the "Concession"); provided, however,
that the Company and the Purchasing Agent may agree also to a Concession greater
than or less than the percentages set forth on Exhibit A hereto. The actual
aggregate Concession with respect to each tranche of Notes will be set forth in
the related Pricing Supplement. The Purchasing Agent and the other Agents or
Selected Dealers will share the above-mentioned Concession in such proportions
as they may agree.
Unless otherwise authorized by the Company, all Notes shall be
sold to the public at a purchase price not to exceed 100% of the principal
amount thereof, plus accrued interest, if any. Such purchase price shall be set
forth in the confirmation statement of the Agent or Selected Dealer responsible
for such sale and delivered to the purchaser along with a copy of the Prospectus
(if not previously delivered) and Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and
the solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. Unless otherwise
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provided in a Terms Agreement, the provisions of the Procedures shall apply to
all transactions contemplated hereunder. The Agents and the Company each agree
to perform the respective duties and obligations specifically provided to be
performed by each in the Procedures as amended from time to time. The Procedures
may only be amended by written agreement of the Company and the Agents.
(c) The Company, the Purchasing Agent and each Agent acknowledges
and agrees, and each Selected Dealer will be required to acknowledge and agree,
that the Notes (i) are being offered for sale in the United States only, (ii)
are not savings accounts, deposits or other obligations of the Principal
Subsidiary Bank or any other banking affiliate of the Company, (iii) are not
guaranteed by the Principal Subsidiary Bank or any other banking affiliate of
the Company and (iv) are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
V.
Each sale of Notes shall be made in accordance with the terms
of this Agreement and a separate agreement in substantially the form attached as
Exhibit C (a "Terms Agreement") to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or formula and maturity date or dates of such Notes, the interest payment dates,
if any, the net proceeds to the Company, the initial public offering price at
which the Notes are proposed to be reoffered, and the time and place of delivery
of and payment for such Notes (the "Settlement Date"), whether the Notes provide
for a Survivor's Option, whether the Notes are redeemable or repayable and on
what terms and conditions, and any other relevant terms. In connection with the
resale of the Notes purchased, without the consent of the Company, the Agents
are not authorized to appoint subagents or to engage the service of any other
broker or dealer, nor may you reallow any portion of the Concession paid to you.
Terms Agreements, each of which shall be substantially in the form of Exhibit C
hereto, or as otherwise agreed to between the Company and the Purchasing Agent,
may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the Company.
VI.
(a) The Company represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (including any purchase by the Purchasing Agent as
principal, pursuant to a Terms Agreement or otherwise), as of each 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
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the issuance of debt securities under the Registration Statement or filed solely
for the purpose of disclosure under Item 9 thereof) (each of the times
referenced above being referred to herein as a "Representation Date") as
follows:
(i) The Company 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 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
will comply in all material respects with the applicable
requirements of the 1933 Act, the Trust Indenture Act and the
1934 Act and the respective rules and regulations thereunder,
(b) the Registration Statement, as amended as of any such
time, 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, 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 Company 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 Trust Indenture Act of either
of the Trustees or (y) the information contained in or omitted
from 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
Company by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration Statement
and the Prospectus.
(iii) The Company 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 Registration
Statement and 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.
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(b) Any certificate signed by any director or officer of the
Company and delivered to the Purchasing Agent or to counsel for the Purchasing
Agent in connection with an offering of Notes or the sale of Notes to the
Purchasing Agent as principal shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
(c) All representations, warranties, covenants and agreements of
the Company contained in this Agreement or in certificates of officers of the
Company 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 Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
(a) Each acceptance by the Company of an offer for the purchase of
Notes, and each delivery of Notes to the Purchasing Agent pursuant to a sale of
Notes to the Purchasing Agent, shall be deemed to be an affirmation that the
representations and warranties of the Company made to the Agents in this
Agreement and in any certificate theretofore delivered pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) Each time:
(i) the Company accepts a Terms Agreement
requiring such updating provisions;
(ii) the Company files an Annual Report on Form
10-K or a Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus;
(iii) the Company files a Current Report on Form
8-K required by Item 2 of Form 8-K with the SEC that is
incorporated by reference into the Prospectus; or
(iv) if required by the Agents after the
Registration Statement or Prospectus has been amended or
supplemented (other than by an amendment or supplement
providing solely for interest rates, maturity dates or other
terms of Notes or similar changes or an amendment or
supplement which relates exclusively to an offering of
securities other than the Notes),
the Company shall furnish or cause to be furnished to the Agents a
certificate of any Senior Vice President or Treasurer or any other
authorized officer of the Company satisfactory to the Agents (an
"Authorized Officer") dated the date specified in the
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applicable Terms Agreement or dated the date of filing with the SEC of
such supplement or document or the date of effectiveness of such
amendment, as the case may be, in form satisfactory to the Agents to
the effect that the statements contained in the certificate referred to
in Section II(b) hereof which was last furnished to the Agents are true
and correct as of the date specified in the applicable Terms Agreement
or at the time of such filing, amendment or supplement, as the case may
be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of
such certificate, a certificate of the same tenor as the certificate
referred to in said Section II(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Each time:
(i) the Company accepts a Terms Agreement
requiring such updating provisions;
(ii) the Company files an Annual Report on Form
10-K or a Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report
on Form 8-K required by Item 2 of Form 8-K
with the SEC that is incorporated by
reference into the Prospectus; or
(B) the Registration Statement or
Prospectus has been amended or supplemented
(other than by an amendment or supplement
providing solely for interest rates,
maturity dates or other terms of the Notes
or similar changes or an amendment or
supplement which relates exclusively to an
offering of securities other than the
Notes),
the Company shall furnish or cause to be furnished forthwith to the
Agents and your counsel the written opinions of Xxxxx Xxxxx Mulliss &
Xxxxx, L.L.P., counsel to the Company, and Xxxx X. Xxxxxxx, Executive
Vice President and General Counsel to the Company (or any deputy or
associate general counsel to the Company), or other counsel
satisfactory to the Agents, dated the date specified in the applicable
Terms Agreement or dated the date of filing with the SEC of such
supplement or document or the date of effectiveness of such amendment,
as the case may be, in form and substance satisfactory to the Agents,
of the same tenor as the opinions referred to in Section II(a)(1)
hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents with a
letter substantially to the effect that the Agents may rely on such
last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that
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statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(d) Each time:
(i) the Company accepts a Terms Agreement requiring
such updating provisions;
(ii) the Company files an Annual Report on Form 10-K
or a Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report on
Form 8-K required by Item 2 of Form 8-K with
the SEC that is incorporated by reference into
the Prospectus; or
(B) the Registration Statement or
Prospectus has been amended or supplemented to
include additional financial information
required to be set forth or incorporated by
reference into the Prospectus under the terms
of Item 11 of Form S-3 under the 1933 Act,
the Company shall cause PricewaterhouseCoopers to furnish the Agents a
letter, dated the date specified in the applicable Terms Agreement or
dated the date of effectiveness of such amendment, supplement or
document filed with the SEC, as the case may be, in form satisfactory
to the Agents, of the same tenor as the portions of the letter referred
to in clauses (i) and (ii) of Section II(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor
as the portions of the letter referred to in clauses (iii) and (iv) of
said Section II(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from
the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers may limit the scope of such letter to the
unaudited financial statements included in such amendment or
supplement. If any other information included therein is of an
accounting, financial or statistical nature, the Agents may request
procedures be performed with respect to such other information. If
PricewaterhouseCoopers is willing to perform and report on the
requested procedures, such letter should cover such other information.
Any letter required to be provided by PricewaterhouseCoopers hereunder
shall be provided within 10 business days of the filing of the Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, within a reasonable time of a request made pursuant to subparagraph
(iii) hereof or on the date specified in an applicable Terms Agreement.
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VIII.
(a) The Company agrees to indemnify and hold harmless each Agent
and each person who controls any Agent within the meaning of either the 1933 Act
or the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus, or
any amendment or supplement thereof, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Agent specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of either of the Trustees, and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if the
Agent failed to deliver a copy of the Prospectus as amended or supplemented to
such person in connection with the sale of such Notes excluding documents
incorporated therein by reference at or prior to the written confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission of a material fact contained
in the Prospectus was corrected in the Prospectus as amended or supplemented.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Company to each Agent, but only with reference to
written information relating to such Agent furnished to the Company by or on
behalf of such Agent specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Agent may otherwise have. The Company
acknowledges that the name of such Agent appearing on the front cover of the
Prospectus, the name of such Agent appearing in the Summary section of the
Prospectus on page 3 and the entire first paragraph, the first sentence of the
second
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paragraph, the second sentence of the third paragraph, the second and third
sentences of the sixth paragraph, the entire seventh paragraph, and, with
respect to Banc of America Securities LLC and the Purchasing Agent only, the
entire fifth paragraph, the entire eighth paragraph and the entire ninth
paragraph, all under the Section "Plan of Distribution" in the Prospectus
constitute the only information furnished in writing by or on behalf of such
Agent for inclusion in the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this
Section VIII of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section VIII, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
except to the extent, if any, that such failure materially prejudices the
indemnifying party. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section VIII for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agents in the case of paragraph (a),
representing the indemnified parties under paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section VIII is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Agents shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Agents may be subject in such proportion so that each Agent is
responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by
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such Agent bears to the total sales price from the sale of Notes sold to or
through the Agents to the date of such liability, and the Company is responsible
for the balance. However, if the allocation provided by the foregoing sentence
is not permitted by applicable law, the Company and the Agents shall contribute
to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Agents may be subject in such
proportion to reflect the relative fault of the Company on the one hand and the
Agents on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Agent, the
parties' relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the Agents
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to above in this
paragraph (d). Notwithstanding anything to the contrary contained herein, (i) in
no case shall an Agent be responsible for any amount in excess of the
commissions and underwriting discounts received by such Agent in connection with
the Notes from which such losses, liabilities, claims, damages and expenses
arise and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section VIII, each person who controls any Agent within the meaning of
the 1933 Act shall have the same rights to contribution as such Agent, and each
person who controls the Company within the meaning of either the 1933 Act or the
1934 Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the provisions of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
IX.
The Company may elect to suspend or terminate the offering of
Notes under this Agreement at any time; the Company also (as to any one or more
of the Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon receipt of instructions from the
Company, the Purchasing Agent shall suspend or terminate the participation of
any Selected Dealer under the Master Selected Dealer Agreement attached hereto
as Exhibit E. Such actions may be taken, in the case of the Company, by giving
prompt written notice of suspension to all of the Agents and by giving not less
than 5 days' written notice of termination to the affected party and the other
parties to this Agreement, or in the case of an
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Agent, by giving not less than 5 days' written notice of termination to the
Company and except that, if at the time of termination an offer for the purchase
of Notes shall have been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto shall not yet have
occurred, the Company shall have the obligations provided herein with respect to
such Note or Notes. The Company shall promptly notify the other parties in
writing of any such termination.
The Purchasing Agent may, and, upon the request of an Agent
with respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the Purchasing Agent to purchase such Notes, immediately
upon notice to the Company at any time prior to the Settlement Date relating
thereto, (i) if there has been, since the date of such agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or (ii) if there shall have occurred,
since the date of such agreement, any outbreak or material escalation of
hostilities or other national or international calamity or crisis, financial or
otherwise, the effect of which is such as to make it, in the sole judgment of
the Purchasing Agent or such Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if, since the date of such
agreement, trading in any securities of the Company has been suspended by the
SEC or a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, (iv) if there shall
have come to the Purchasing Agent's or such Agent's attention any facts that
would cause the Purchasing Agent or such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading, (v) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Issuer as of the date of any agreement by the Purchasing Agent
or such Agent to purchase Notes as principal shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Issuer or (vi) if, since the date of such agreement,
a banking moratorium shall have been declared by either Federal or New York
authorities.
Any Terms Agreement shall be subject to termination in your
absolute discretion on the terms set forth or incorporated by reference therein.
The termination of this Agreement shall not require termination of any agreement
by the Purchasing Agent to purchase Notes as principal, and the termination of
any such agreement shall not require termination of this Agreement.
If this Agreement is terminated, Section III(c) and (e),
Section VIII and Section XII hereof shall survive and shall remain in effect;
provided that if at the time of termination of this Agreement an offer to
purchase Notes has been accepted by the Company but the time of
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delivery to the Purchasing Agent of such Notes has not occurred, the provisions
of all of Section III, Section IV(b) and Section V shall also survive until time
of delivery.
In the event a proposed offering is not completed according to
the terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all
statements, requests, notices and advices hereunder shall be in writing, or by
telephone if promptly confirmed in writing, and if to an Agent shall be
sufficient in all respects if delivered in person or sent by telex, facsimile
transmission (confirmed in writing), or registered mail to such Agent at its
address, telex or facsimile number set forth on Annex A hereto and if to the
Company shall be sufficient in all respects if delivered or sent by telex,
facsimile transmission (confirmed in writing) or registered mail to the Company
at the address specified below. All such notices shall be effective on receipt.
If to the Company:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-23-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Senior Vice President
Telecopy: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxx
General Counsel
Bank of America Corporation
Bank of America Corporate Center
Legal Department NC1-007-20-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx - Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section.
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XI.
This Agreement shall be binding upon the Agents and the
Company, and inure solely to the benefit of the Agents and the Company and any
other person expressly entitled to indemnification hereunder and the respective
personal representatives, successors and assigns of each, and no other person
shall acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York. Each party to
this Agreement irrevocably agrees that any legal action or proceeding against it
arising out of or in connection with this Agreement or for recognition or
enforcement of any judgment rendered against it in connection with this
Agreement may be brought in any Federal or New York State court sitting in the
County of New York, New York, and, by execution and delivery of this Agreement,
such party hereby irrevocably accepts and submits to the jurisdiction of each of
the aforesaid courts in person, generally and unconditionally with respect to
any such action or proceeding for itself and in respect of its property, assets
and revenues. Each party hereby also irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such action or proceeding brought in any such court and any
claim that any such action or proceeding has been brought in an inconvenient
forum.
XIII.
If this Agreement is executed by or on behalf of any party,
such person hereby states that at the time of the execution of this Agreement he
has no notice of revocation of the power of attorney by which he has executed
this Agreement as such attorney.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement; (ii) the preparation,
issuance and delivery of the Notes; (iii) the fees and disbursements of the
Company's auditors, of the Trustee and its counsel and of any paying or other
agents appointed by the Company; (iv) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and the
Prospectus; (v) the reasonable fees and disbursements of Stroock & Stroock &
Xxxxx LLP, counsel for the Agents; (vi) if the Company lists Notes on a
securities exchange, the costs and fees of such listing; (vii) the fees and
expenses, if any, including the reasonable fees and disbursements of Stroock &
Stroock & Xxxxx LLP, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.; (viii) the cost of providing CUSIP or
other identification numbers for the Notes, (ix) all reasonable expenses
(including fees and disbursements of Stroock & Stroock & Xxxxx LLP) in
connection with "Blue Sky" qualifications and (x) any fees charged by rating
agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such
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counterparts shall together constitute but one and the same instrument.
Facsimile signatures shall be deemed original signatures.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between the Company and you.
Very truly yours,
BANK OF AMERICA CORPORATION
By:
--------------------------------
Name:
Title:
Confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
-----------------------------------
Name:
Title:
INCAPITAL LLC
By:
-----------------------------------
Name:
Title:
X.X. XXXXXXX & SONS, INC.
By:
-----------------------------------
Name:
Title:
XXXXXXX XXXXXX & CO., INC.
By:
-----------------------------------
Name:
Title:
23
25
XXXXXX X. XXXXX & CO., L.P.
By:
-----------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
-----------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By:
-----------------------------------
Name:
Title:
XXXXXXX XXXXX BARNEY INC.
By:
-----------------------------------
Name:
Title:
UBS PAINEWEBBER INC.
By:
-----------------------------------
Name:
Title:
24
26
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
Bank of America Xxxxxxxxx Xxxxxx
XX 0000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. XxXxxxxxx
Fax: (000) 000-0000
Incapital LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
X.X. Xxxxxxx & Sons, Inc.
#1 North Jefferson
0xx Xxxxx Xxxx Xxxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx/Xxx Xxxxxxx
Fax: (000) 000-0000
Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx SF345CAL-19-113
Fax: (000) 000-0000
Xxxxxx X. Xxxxx & Co., L.P.
Corporate Bond Department
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Global Transaction Management Group
4 World Financial Xxxxxx Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
25
27
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager - Continuously Offered Products
Fax: (000) 000-0000
w/copy to:
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Investment Banking Information Center
Fax: (000) 000-0000
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxx/Xxxxx X. Xxxxxxx
Fax: (000) 000-0000/4556
Xxxxxxx Xxxxx Barney Inc.
Medium-Term Note Department
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
UBS PaineWebber Inc.
Taxable Fixed Income Department
Attention: Corporate Desk
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
With a copy to:
UBS PaineWebber Inc.
Transaction Management Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
26
28
EXHIBIT A
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months.................... 0.200%
23 months to less than 35 months.................... 0.400%
35 months to less than 47 months.................... 0.625%
47 months to less than 59 months.................... 0.750%
59 months to less than 71 months.................... 1.000%
71 months to less than 83 months.................... 1.100%
83 months to less than 95 months.................... 1.200%
95 months to less than 107 months................... 1.300%
107 months to less than 119 months.................. 1.400%
119 months to less than 131 months.................. 1.500%
131 months to less than 143 months.................. 1.600%
143 months to less than 179 months.................. 1.750%
179 months to less than 239 months.................. 2.000%
239 months to less than 360 months.................. 2.500%
360 months or greater............................... 3.000%
A-1
00
XXXXXXX X
Xxxx xx Xxxxxxx Corporation
$5,000,000,000
INTERNOTES
DUE FROM NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, Due from nine months or more from date of issue are offered on a
continuing basis by Bank of America Corporation. The Notes will be offered by
Incapital LLC (the "Purchasing Agent"), Banc of America Securities LLC, X.X.
Xxxxxxx & Sons, Inc., Xxxxxxx Xxxxxx & Co., Inc., Xxxxxx X. Xxxxx & Co., L.P.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, Prudential Securities Incorporated, Xxxxxxx Xxxxx Barney, Inc. and
UBS PaineWebber Inc., (collectively, the "Agents") pursuant to a Selling Agent
Agreement among the Company and the Agents dated as of the date hereof (the
"Selling Agent Agreement") and one or more terms agreements substantially in the
form attached to the Selling Agent Agreement as Exhibit C (each a "Terms
Agreement"). The Notes are being resold by the Purchasing Agent (and by any
Agent that purchases them from the Purchasing Agent) (i) directly to customers
of the Agents or (ii) to selected broker-dealers (the "Selected Dealers") for
distribution to their customers pursuant to a Master Selected Dealer Agreement
(a "Dealers Agreement") attached to the Selling Agent Agreement as Exhibit E.
The Agents have agreed to use their reasonable best efforts to solicit purchases
of the Notes. The Notes may be either senior debt or subordinated debt and have
been registered with the Securities and Exchange Commission (the "SEC"). The
Bank of New York is the trustee (the "Trustee") for both the senior and the
subordinated debt under restated Indentures dated as of January 1, 2001, as
amended from time to time, between the Company and the Trustee (the "Indenture")
covering the Notes. Pursuant to the terms of the Indenture, The Bank of New York
also will serve as authenticating agent, issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry only form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for The Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling Agent
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes,
B-1
30
the Indenture, the Selling Agent Agreement or the Prospectus and the Pricing
Supplement (together, the "Prospectus"), the relevant provisions of the Notes,
the Indenture, the Selling Agent Agreement and the Prospectus shall control.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Selling Agent Agreement, the Prospectus in the
form most recently filed with the SEC pursuant to Rule 424 of the 1933 Act, or
in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated __________, 2001 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated __________, 2001
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity
Date") not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any date
selected by the initial purchaser and agreed to by the
Company. "Maturity" when used with respect to any Note,
means the date on which the outstanding principal amount of
such Note becomes due and payable in full in accordance with
its terms, whether at its Maturity Date or by declaration of
acceleration, call for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note will be
dated and issued as of the date of its authentication by the
Trustee.
Each Global Note will bear an original issue date (the
"Original Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon transfer,
exchange or substitution of an original Note regardless of
their dates of authentication.
Identification The Company has received from the CUSIP Service Bureau (the
Numbers: CUSIP Service Bureau") of Standard & Poor's Corporation
("Standard & Poor's") one series of CUSIP numbers consisting
of approximately 900 CUSIP numbers for future assignment to
Global Notes. The Company will provide the Purchasing Agent,
DTC and the Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent will assign
CUSIP numbers as described below under Settlement Procedure
"B".
B-2
31
DTC will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global Notes.
The Company will reserve additional CUSIP numbers when
necessary for assignment to Global Notes and will provide
the Purchasing Agent, the Trustee and DTC with the list of
additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons. Each
Global Note will be registered in the name of Cede & Co., as
nominee for DTC, on the Note Register maintained under the
Indenture by the Trustee. The beneficial owner of a Note (or
one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner of such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of interests in a Global Note will be accomplished
by book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such interests.
Exchanges: The Trustee, at the Company's request, may deliver to DTC
and the CUSIP Service Bureau at any time a written notice of
consolidation specifying (a) the CUSIP numbers of two or
more Global Notes outstanding on such date that represent
Notes having the same terms or (except that Issue Dates need
not be the same) and for which interest, if any, has been
paid to the same date and which otherwise constitute Notes
of the same series and tenor under the Indenture, (b) a
date, occurring at least 30 days after such written notice
is delivered and at least 30 days before the next Interest
Payment Date, if any, for the related Notes, on which such
Global Notes shall be exchanged for a single replacement
Global Note; and (c) a new CUSIP number, obtained from the
Company, to be assigned to Such replacement Global Note.
Upon receipt of such a notice, DTC will send to its
participants (including the Issuing Agent) and the Trustee a
written reorganization notice to the effect that such
exchange
B-3
32
will occur on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the Trustee
will exchange such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP numbers of the
exchanged Global Notes will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global
Notes to be exchanged exceed $400,000,000 in aggregate
principal or face amount, one replacement Global Note will
be authenticated and issued to represent each $400,000,000
of principal or face amount of the exchanged Global Notes
and an additional Global Note will be authenticated and
issued to represent any remaining principal amount of such
Global Notes (See "Denominations" below).
Denominations: Unless otherwise agreed by the Company, Notes will be issued
in denominations of $1,000 or more (in multiples of $1,000).
Global Notes will be denominated in principal or face
amounts not in excess of $400,000,000 or any other limit set
by the DTC (the "Permitted Amount"). If one or more Notes
having an aggregate principal or face amount in excess of
the Permitted Amount would, but for the preceding sentence,
be represented by a single Global Note, then one Global Note
will be issued to represent each Permitted Amount principal
or face amount of such Note or Notes and an additional
Global Note will be Issued to represent any remaining
principal amount of such Note or Notes. In such case, each
of the Global Notes representing such Note or Notes shall be
assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
Interest: General. Each Note will bear interest at a fixed rate.
Interest on each Note will accrue from the Issue Date of
such Note for the first interest period and from the most
recent Interest Payment Date to which interest has been paid
for all subsequent interest periods. Except as set forth
hereafter, each payment of interest on a Note will include
interest accrued to, but excluding, as the case may be, the
Interest Payment Date or the date of Maturity (other than a
Maturity Date of a Note occurring on the 31st day of a month
in which case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
B-4
33
Any payment of principal, premium or interest required to be
made on a day that is not a Business Day (as defined below)
may be made on the next succeeding Business Day and no
interest shall accrue as a result of any such delayed
payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's
Corporation, which will use the message to include certain
information regarding the related Notes in the appropriate
daily bond report published by Standard & Poor's
Corporation.
Each Note will bear interest from, and including, its Issue
Date at the rate per annum set forth thereon and in the
applicable Pricing Supplement until the principal amount
thereof is paid, or made available for payment, in full.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Note will be payable either
monthly, quarterly, semi-annually or annually on each
Interest Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is repurchased by the
Company prior to maturity pursuant to mandatory or optional
redemption or repayment provisions or the Survivor's
Option). Interest will be payable to the person in whose
name a Note is registered at the close of business on the
Regular Record Date next preceding each Interest Payment
Date; provided, however, interest payable at Maturity, on a
date of redemption or repayment or in connection with the
exercise of the Survivor's Option will be payable to the
person to whom principal shall be payable.
Any payment of principal, and premium, if any, or interest
required to be made on a Note on a day which is not a
Business Day need not be made on such day, but may be made
on the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest
shall accrue as a result of such delayed payment. Unless
otherwise specified in the applicable Pricing Supplement,
any interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the
Company will agree to pay on newly-issued Notes are subject
to change without notice by the Company from time to time,
but no such change will affect any Notes already issued or
as to which an offer to purchase has been accepted by the
Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of each
calendar month, commencing in the calendar month that next
succeeds the
B-5
34
month in which the Note is issued. In the case of a Note
that provides for quarterly interest payments, the Interest
Payment Dates shall be the fifteenth day of each third
month, commencing in the third succeeding calendar month
following the month in which the Note is issued. In the case
of a Note that provides for semi-annual interest payments,
the Interest Payment dates shall be the fifteenth day of
each sixth month, commencing in the sixth succeeding
calendar month following the month in which the Note is
issued. In the case of a Note that provides for annual
interest payments, the Interest Payment Date shall be the
fifteenth day of every twelfth month, commencing in the
twelfth succeeding calendar month following the month in
which the Note is issued. The Regular Record Date with
respect to any Interest Payment Date shall be the first day
of the calendar month in which such Interest Payment Date
occurred, except that the Regular Record Date with respect
to the final Interest Payment Date shall be the final
Interest Payment Date.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has been
paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as
the case may be.
Calculation
of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months. (Examples of interest calculations
are as follows: October 1, 1998 to April 1, 1999 equals 6
months and 0 days, or 180 days; the interest paid equals
180/360 times the annual rate of interest times the
principal amount of the Note. The period from December 3,
1998 to April 1, 1999 equals 3 months and 28 days, or 118
days; the interest payable equals 118/360 times the annual
rate of interest times the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, 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.
Payments of
Principal
and Interest: Payments of Principal and Interest. Promptly after each
Regular Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest, if any, to be paid on each Global Note
on the following
B-6
35
Interest Payment Date (other than an Interest Payment Date
coinciding with a Maturity Date) and the total of such
amounts. DTC will confirm the amount payable on each Global
Note on such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's. On such
Interest Payment Date, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, such total amount
of interest due (other than on the Maturity Date), at the
times and in the manner set forth below under "Manner of
Payment." If any Interest Payment Date for any Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, premium, if
any, and interest to be paid on each Global Note
representing Notes maturing or subject to redemption
(pursuant to a sinking fund or otherwise) or repayment
("Maturity") in the following month. The Trustee, the
Company and DTC will confirm the amounts of such principal,
premium, if any, and interest payments with respect to each
Global Note on or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity Date, the
Company will pay to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on such
Maturity Date, at the times and in the manner set forth
below under "Manner of Payment." If the Maturity Date of any
Global Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Maturity Date. Promptly after payment to DTC
of the principal and interest due on the Maturity Date of
such Global Note and all other Notes represented by such
Global Note, the Trustee will cancel and destroy such Global
Note in accordance with the Indenture and so advise the
Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or at Maturity shall be paid by the
Company to the Trustee in immediately available funds on
such date. The Company will make such payment on such Global
Notes to an account specified by the Trustee. Prior to 10:00
a.m., New York City time, on the date of Maturity or as soon
as possible thereafter, the Trustee will make payment to DTC
in
B-7
36
accordance with existing arrangements between DTC and the
Trustee, in funds available for immediate use by DTC, each
payment of interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment Date
(other than on the Maturity Date) the Trustee will pay DTC
such interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts
proportionate to their respective holdings in principal
amount of beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC. Neither
the Company nor the Trustee shall have any direct
responsibility or liability for the payment by DTC of the
principal of, or premium, if any, or interest on, the Notes
to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to time,
the aggregate principal amounts of, the Maturities, the
Issue Price and the interest rates to be borne by Notes that
may be sold as a result of the solicitation of orders by the
Agents. If the Company decides to set interest rates borne
by any Notes in respect of which the Agents are to solicit
orders (the setting of such interest rates to be referred to
herein as "Posting") or if the Company decides to change
interest rates previously posted by it, it will promptly
advise the Agents of the prices and interest rates to be
posted.
The Purchasing Agent will assign a separate CUSIP number for
each tranche of Notes to be posted, and will so advise and
notify the Company and the Trustee of said assignment by
telephone and/or by telecopier or other form of electronic
transmission. The Purchasing Agent will include the assigned
CUSIP number on all Posting notices communicated to the
Agents and Selected Dealers.
Offering of Notes: In the event that there is a Posting, the Purchasing Agent
will communicate to each of the Agents and Selected Dealers
the
B-8
37
aggregate principal amount and Maturities of, along with the
interest rates to be borne by, each tranche of Notes that is
the subject of the Posting. Thereafter, the Purchasing
Agent, along with the other Agents and the Selected Dealers,
will solicit offers to purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 12:00 noon (New
York City time) on the seventh day subsequent to the day on
which such Posting occurs, or if such seventh day is not a
Business Day on the preceding Business Day, or on such other
Business Day and time as shall be mutually agreed upon by
the Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a Terms
Agreement that sets forth, among other things, the amount of
each tranche that the Purchasing Agent is offering to
purchase or (ii) inform the Company that none of the Notes
of a particular tranche will be purchased by the Purchasing
Agent.
Acceptance and
Rejection
of Orders: Unless otherwise agreed by the Company and the Agents, the
Company has the sole right to accept orders to purchase
Notes and may reject any such order in whole or in part.
Unless otherwise instructed by the Company, the Purchasing
Agent will promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than those
rejected by it in whole or in part in the reasonable
exercise of its discretion. No order for less than $1,000
principal amount of Notes will be accepted.
Upon receipt of a completed and executed Terms Agreement
from the Purchasing Agent, the Company will (i) promptly
execute and return such Terms Agreement to the Purchasing
Agent or (ii) inform the Purchasing Agent that its offer to
purchase the Notes of a particular tranche has been
rejected, in whole or in part. The Purchasing Agent will
thereafter promptly inform the other Agents and
participating Selected Dealers of the action taken by the
Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by or on behalf
of the Company, the Company will provide a Pricing
Supplement (substantially in the form attached to the
Selling Agent Agreement as Exhibit D) reflecting the terms
of such Note and will have filed such Pricing Supplement
with the SEC in accordance with the applicable paragraph of
Rule 424(b) under the Act. The Company shall use its
reasonable best efforts to
B-9
38
send such Pricing Supplement by email or telecopy to the
Purchasing Agent and the Trustee by 3:00 p.m. (New York City
Time) on the applicable Trade Day. The Purchasing Agent
shall use its reasonable best efforts to send such Pricing
Supplement and the Prospectus by email or telecopy or
overnight express (for delivery by the close of business on
the applicable Trade Day, but in no event later than 11:00
a.m. New York City time, on the Business Day following the
applicable Trade Date) to each Agent (or other Selected
Dealer) which made or presented the offer to purchase the
applicable Note and the Trustee at the following applicable
address:
if to Banc of America Securities LLC, to:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to Incapital LLC, to:
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to X.X. Xxxxxxx & Sons, Inc, to:
#1 North Jefferson
0xx Xxxxx Xxxx Xxxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx/Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to Xxxxxxx Xxxxxx & Co., Inc., to:
Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx SF345CAL-19-113
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
B-10
39
if to Xxxxxx X. Xxxxx & Co., L.P., to:
Corporate Bond Department
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
to:
Xxxxxxx Xxxxx Production Technologies
00X Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Prospectus Operations/ Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000/5/6
email: xxxxxxxx@xx0.xx.xx.xxx
if to Xxxxxx Xxxxxxx & Co. Incorporated, to:
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading Desk, Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to Prudential Securities Incorporated, to:
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
if to Xxxxxxx Xxxxx Barney Inc., to:
Attention: Xxxxxxxxx Xxxxx
Brooklyn Army Terminal
000 00xx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
B-11
40
if to UBS PaineWebber Inc., to:
Taxable Financial Income Department
Attention: Corporate Desk
000 Xxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and if to the Trustee, to:
The Bank of New York
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or telecopied
to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier (000) 000-0000
and to:
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Each such Agent (or Selected Dealer), in turn, pursuant to
the terms of the Selling Agent Agreement and the Master
Selected Dealer Agreement, will cause to be delivered a copy
of the Prospectus and the applicable Pricing Supplement to
each purchaser of Notes from such Agent or Selected Dealer.
Outdated Pricing Supplements and the Prospectuses to which
B-12
41
they are attached (other than those retained for files) will
be destroyed.
Delivery of
Confirmation and
Prospectus to
Purchaser by
Presenting Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a Prospectus and
Pricing Supplement as herein described with respect to each
Note sold by it.
For each offer to purchase a Note accepted by or on behalf
of the Company, the Purchasing Agent will confirm in writing
with each Agent or Selected Dealer the terms of such Note,
the amount being purchased by such Agent or Selected Dealer
and other applicable details described above and delivery
and payment instructions, with a copy to the Company.
In addition, the Purchasing Agent, other Agent or Selected
Dealer, as the case may be, will deliver to investors
purchasing the Notes the Prospectus (including the Pricing
Supplement) in relation to such Notes prior to or
simultaneously with delivery of the confirmation of sale or
delivery of the Note.
Settlement: The receipt of immediately available funds by the Company in
payment for Notes and the authentication and issuance of the
Global Note representing such Notes shall constitute
"Settlement" with respect to such Note. All orders accepted
by the Company will be settled within one to three Business
Days pursuant to the timetable for Settlement set forth
below, unless the Company and the purchaser agree to
Settlement on a later date, and shall be specified upon
acceptance of such offer; provided, however, in all cases
the Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as agent,
appropriate Settlement details, if different from those set
forth below, will be set forth in the applicable Terms
Agreement to be entered into between such Agent and the
Company pursuant to the Selling Agent Agreement. Settlement
Procedures with regard to each Note sold by an Agent, as
principal for the Company, shall be as follows:
B-13
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A. After the acceptance of an offer by the Company with
respect to a Note, the Purchasing Agent will
communicate the following details of the terms of such
offer (the "Note Sale Information") to the Company by
telephone confirmed in writing or by facsimile
transmission or other acceptable written means:
1. Principal amount of the purchase;
2. Whether the Notes are Senior or Subordinated;
3. Interest Rate per annum;
4. Interest Payment Frequency;
5. Settlement Date;
6. Maturity Date;
7. Price to Public;
8. Purchasing Agent's commission determined pursuant
to Section IV(a) of the Selling Agent Agreement;
9. Net proceeds to the Company;
10. Trade Date;
11. If a Note is redeemable by the Company or
repayable by the Noteholder, such of the
following as are applicable:
(i) The date on and after which such Note may
be redeemed/repaid (the "Redemption/
Repayment Commencement Date"),
(ii) Initial redemption/repayment price (% of
par), and
B-14
43
(iii) Amount (% of par) that the initial
redemption/repayment price shall decline
(but not below par) on each anniversary of
the Redemption/Repayment Commencement Date;
12. Whether the Note has a Survivor's Option;
13. If a Discount Note, the total amount of original
issue discount, the yield to maturity and the
initial accrual period of original issue
discount;
14. DTC Participant Number of the institution through
which the customer will hold the beneficial
interest in the Global Note; and
15. Such other terms as are necessary to complete the
applicable form of Note.
B. The Company will confirm the previously assigned CUSIP
number to the Global Note representing such Note and
then advise the Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time on the same
date) or by telecopier or other form of electronic
transmission of the information received in accordance
with Settlement Procedure "A" above, the assigned CUSIP
number and the name of the Purchasing Agent. Each such
communication by the Company will be deemed to
constitute a representation and warranty by the Company
to the Trustee and the Agents that (i) such Note is
then, and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the
Company; (ii) such Note, and the Global Note
representing such Note, will conform with the terms of
the Indenture; and (iii) upon authentication and
delivery of the Global Note representing such Note, the
aggregate principal amount of all Notes issued under
the Indenture will not exceed the aggregate principal
amount of Notes authorized for issuance at such time by
the Company.
C. The Trustee will communicate to DTC and the Purchasing
Agent through DTC's Participant Terminal System, a
pending deposit message specifying the following
Settlement information:
X-00
00
0. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee and
the Purchasing Agent.
3. The initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related DTC record date (which term means the
Regular Record Date), and if then calculated, the
amount of interest payable on such Initial
Interest Payment Date (which amount shall have
been confirmed by the Trustee).
4. The CUSIP number of the Global Note representing
such Notes.
5. The frequency of interest.
6. Whether such Global Note represents any other
Notes issued or to be issued (to the extent then
known).
D. DTC will credit such Note to the participant account of
the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global Note
representing such Note in a form that has been approved
by the Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of such
Global Note.
X-00
00
X. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the participant account
of the Purchasing Agent maintained by DTC and (ii)
debit the settlement account of the Purchasing Agent
and credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the price of
such Note less the Purchasing Agent's commission. The
entry of such a deliver order shall be deemed to
constitute a representation and warranty by the Trustee
to DTC that (a) the Global Note representing such Note
has been issued and authenticated and (b) the Trustee
is holding such Global Note pursuant to the Certificate
Agreement.
H. The Purchasing Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC to (i) debit such Note to the Purchasing Agent's
participant account and credit such Note to the
participant accounts of the Participants to whom such
Note is to be credited maintained by DTC and (ii) debit
the settlement accounts of such Participants and credit
the settlement account of the Purchasing Agent
maintained by DTC, in an amount equal to the price of
the Note less the agreed upon commission so credited to
their accounts.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the Company
maintained at Bank of America, N.A. funds available for
immediate use in an amount equal to the amount credited
to the Trustee's DTC participant account in accordance
with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
B-17
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L. Each Agent and Selected Dealer will confirm the
purchase of each Note to the purchaser thereof either
by transmitting to the Participant to whose account
such Note has been credited a confirmation order
through DTC's Participant Terminal System or by mailing
a written confirmation to such purchaser. In all cases
the Prospectus as most recently amended or supplemented
must accompany or precede such confirmation.
M. Each Business Day, the Trustee will send to the Company
a statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the Company has
advised the Trustee but which have not yet been
settled.
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing Agent,
as principal, appropriate Settlement details, if different
from those set forth below will be set forth in the
applicable Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the Selling
Agent Agreement.
Settlement Procedures "A" through "M" shall be completed as
soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
X-X 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
B-18
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NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension in
accordance with any extension Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m., New York City time, on the Business
Day immediately preceding the scheduled Settlement Date.
B-19
48
Failure to Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Note pursuant to Settlement Procedure "G", the
Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will process
the withdrawal message, provided that such participant
account contains Notes having the same terms and having a
principal amount that is at least equal to the principal
amount of such Note to be debited. If withdrawal messages
are processed with respect to all the Notes issued or to be
issued represented by a Global Note, the Trustee will cancel
such Global Note in accordance with the Indenture, make
appropriate entries in its records and so advise the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned. If withdrawal
messages are processed with respect to one or more, but not
all, of the Notes represented by a Global Note, the Trustee
will exchange such Global Note for two Global Notes, one of
which shall represent such Notes and shall be cancelled
immediately after issuance, and the other of which shall
represent the remaining Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number of
the surrendered Global Note. If the purchase price for any
Note is not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through DTC's
participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the Agent in the performance of
its obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on an
equitable basis for its reasonable out-of-pocket accountable
expenses actually incurred and loss of the use of funds
during the period when they were credited to the account of
the Company.
B-20
49
Notwithstanding the foregoing, upon any failure to settle
with respect to a Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of Notes that were to have been
represented by a Global Note, the Trustee will provide, in
accordance with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note representing
the other Notes to have been represented by such Global Note
and will make appropriate entries in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change rates, the
Company will promptly advise the Agents of the new rates,
who will forthwith suspend solicitation of purchases of
Notes at the prior rates. The Agents may telephone the
Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such instructions
(which may be given orally), each Agent will forthwith
suspend solicitation until such time as the Company has
advised it that solicitation of purchases may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have
the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
B-21
50
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents and the Trustee
with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Selling
Agent Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the Commission
any supplement to the Prospectus relating to the Notes. The
Company will provide the Agents and the Trustee with copies
of any such supplement, and confirm to the Agents that such
supplement has been filed with the SEC.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any payment
to the Company, or the Agents or the purchasers, it being
understood by all parties that payments made by the Trustee
to either the Company or the Agents shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
Advertising Costs: The Company shall have the sole right to approve the form
and substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to by
the Company.
B-22
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EXHIBIT C
TERMS AGREEMENT
_________, 2001
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Division NC 1-007-23-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Senior Vice President
The undersigned agrees to purchase the following aggregate principal amount of
Bank of America Corporation Senior/Subordinated InterNotes:
$_____________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Senior/Subordinated Notes:
Interest Rate: _____%
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: _________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption/Repayment Date until the Redemption/Repayment Price is 100% of
the Principal Amount.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By:
--------------------------------
Title:
--------------------------------
ACCEPTED
BANK OF AMERICA CORPORATION
By:
-------------------------------
Title:
-------------------------------
C-1
52
Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated: ___________________ Rule 424(b)(3)
(To Prospectus Dated _____________, 2001) File No. 333-______
Pricing Supplement No. ______________________
U.S. $5,000,000,000
BANK OF AMERICA CORPORATION
INTERNOTES(SM)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
_________________________________________________________________
Trade Date:
--------------------------------------------------
Issue Date:
-------------------------------------------------
Joint Lead Managers:
-------------------------------
Agents:
---------------------------------------------
_________________________________________________________________
----------------------------------------------------------------------------------------
CUSIP AGGREGATE PRICE CONCESSION NET SENIOR OR INTEREST
PRINCIPAL TO PROCEEDS SUBORDINATED RATE
AMOUNT PUBLIC TO ISSUER
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
INTEREST MATURITY SURVIVOR'S REDEMPTION OR REDEMPTION/
PAYMENT DATE OPTION REPAYMENT REPAYMENT TERMS
FREQUENCY YES/NO
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Other Terms:
------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
D-1
53
EXHIBIT E
Master Selected Dealer Agreement
[FirstName]
[Company]
[Address1]
[Address2]
[City],[State] [Postal]
Dear Selected Dealer:
In connection with public offerings of securities after the
date hereof for which we are acting as manager of an underwriting syndicate or
are otherwise responsible for the distribution of securities to the public by
means of an offering of securities for sale to selected dealers, you may be
offered the right as such a selected dealer to purchase as principal a portion
of such securities. This will confirm our mutual agreement as to the general
terms and conditions applicable to your participation in any such selected
dealer group organized by us as follows.
1. Applicability of this Agreement. The terms and
conditions of this Agreement shall be applicable to any public offering
of securities ("Securities"), pursuant to a registration statement
filed under the Securities Act of 1933 (the "Securities Act"), or
exempt from registration thereunder (other than a public offering of
Securities effected wholly outside the United States of America),
wherein Incapital LLC clearing through BNY Clearing Services, LLC (the
"Account") (acting for its own Account or for the account of any
underwriting or similar group or syndicate) is responsible for managing
or otherwise implementing the sale of the Securities to selected
dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of
Securities to you as a Selected Dealer is hereinafter called an
"Offering". In the case of any Offering where we are acting for the
account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be
for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as
representatives of Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering: (i) will be subject to delivery of the Securities and their
acceptance by us and any other Underwriters; (ii) may be subject to the
approval of all legal matters by counsel and the satisfaction of other
conditions, and (iii) may be made on the basis of reservation of
Securities or an allotment against subscription. We will advise you by
electronic mail, facsimile or other form of written communication
("Written Communication", which term, in the case of any Offering
described in Section 3(a) or 3(b) hereof, may include a prospectus or
E-1
54
offering circular) of the particular method and supplementary terms and
conditions (including, without limitation, the information as to prices
and offering date referred to in Section 3(c) hereof) of any Offering
in which you are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision
herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication,
acceptances and other communications by you with respect to an Offering
should be sent to Incapital LLC, Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, (Fax: (000) 000-0000). We reserve the right to
reject any acceptance in whole or in part. Unless notified otherwise by
us, Securities purchased by you shall be paid for on such date as we
shall determine, on one day's prior notice to you, by certified or
official bank check, in an amount equal to the Public Offering Prices
(as hereinafter defined) or, if we shall so advise you, at such Public
Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of BNY Clearing Services,
LLC clearing for the account of Incapital LLC, against delivery of the
Securities. If Securities are purchased and paid for at such Public
Offering Price, such Concession will be paid after the termination of
the provisions of Section 3(c) hereof with respect to such Securities.
Notwithstanding the foregoing, unless notified otherwise by us, payment
for and delivery of Securities purchased by you shall be made through
the facilities of The Depository Trust Company, if you are a member,
unless you have otherwise notified us prior to the date specified in a
Written Communication to you from us or, if you are not a member,
settlement may be made through a correspondent who is a member pursuant
to instructions which you will send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the applicable rules and regulations of the
Securities and Exchange Commission thereunder. You represent and warrant that
you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with
E-2
55
such number of copies of each preliminary offering circular and of the final
offering circular relating thereto as you may reasonably request. You agree that
you will comply with the applicable Federal and state laws, and the applicable
rules and regulations of any regulatory body promulgated thereunder, governing
the use and distribution of offering circulars by brokers or dealers. You agree
that in purchasing Securities pursuant to an offering circular you will rely
upon no statements whatsoever, written or oral, other than the statements in the
final offering circular delivered to you by us. You will not be authorized by
the issuer or other seller of Securities offered pursuant to an offering
circular or by any Underwriter to give any information or to make any
representation not contained in the offering circular in connection with the
sale of such Securities.
(c) Offer and Sale to the Public. With respect to any
Offering of Securities, we will inform you by a Written Communication of the
public offering price, the selling concession, the reallowance (if any) to
dealers and the time when you may commence selling Securities to the public.
After such public offering has commenced, we may change the public offering
price, the selling concession and the reallowance to dealers. The offering
price, selling concession and reallowance (if any) to dealers at any time in
effect with respect to an Offering are hereinafter referred to, respectively, as
the "Public Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of this Section
3(c) shall be terminated pursuant to Section 4 hereof, you agree to offer
Securities to the public at no more than the Public Offering Price. If so
notified by us, you may sell Securities to the public at a lesser negotiated
price than the Public Offering Price, but in an amount not to exceed the
"Concession." If a Reallowance is in effect, a reallowance from the Public
Offering Price not in excess of such Reallowance may be allowed as consideration
for services rendered in distribution to dealers who are actually engaged in the
investment banking or securities business, who execute the written agreement
prescribed by section 24(c) of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. (the "NASD") and who are either
members in good standing of the NASD or foreign banks, dealers or institutions
not eligible for membership in the NASD who represent to you that they will
promptly reoffer such Securities at the Public Offering Price and will abide by
the conditions with respect to foreign banks, dealers and institutions set forth
in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We
may, with respect to any Offering, be authorized to over-allot in arranging
sales to Selected Dealers, to purchase and sell Securities for long or short
account and to stabilize or maintain the market price of the Securities. You
agree that, upon our request at any time and from time to time prior to the
termination of the provisions of Section 3(c) hereof with respect to any
Offering, you will report to us the amount of Securities purchased by you
pursuant to such Offering which then remain unsold by you and will, upon our
request at any such time, sell to us for our account or the account of one or
more Underwriters such amount of such unsold Securities as we may designate at
the Public Offering Price less an amount to be determined by us not in excess of
the Concession. If, prior to the later of (i) the termination of the provisions
of Section 3(c) hereof with respect to any Offering or (ii) the covering by us
of any short position created by us in connection with such Offering for our
account or the account of one or more Underwriters, we purchase or contract to
purchase for our account or the account of one or more Underwriters in
E-3
56
the open market or otherwise any Securities purchased by you under this
Agreement as part of such Offering, you agree to pay us on demand an amount
equal to the Concession with respect to such Securities (unless you shall have
purchased such Securities pursuant to Section 2 hereof at the Public Offering
Price in which case we shall not be obligated to pay such Concession to you
pursuant to Section 2) plus transfer taxes and broker's commissions or dealer's
xxxx-up, if any, paid in connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually
engaged in the investment banking or securities business and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of section 24 of Article III of
the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker or
dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provisions of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling Concession, discount or other
allowance is granted to you, clauses (1) and (2) of the preceding paragraph will
be applicable.
(f) Relationship among Underwriters and Selected Dealers.
We may buy Securities from or sell Securities to any Underwriter or Selected
Dealer and, without consent, the Underwriters (if any) and the Selected Dealers
may purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. Unless otherwise
specified in a separate agreement between you and us, this agreement does not
authorize you to act as agent for: (i) us; (ii) any Underwriter; (iii) the
issuer; or (iv) other seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. Nothing contained herein
or in any Written Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal
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income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform
you as to any advice we have received from counsel concerning the jurisdictions
in which Securities have been qualified for sale or are exempt under the
securities or blue sky laws of such jurisdictions, but we do not assume any
obligation or responsibility as to your right to sell Securities in any such
jurisdiction.
(h) Compliance with Law. You agree that in selling
Securities pursuant to any Offering (which agreement shall also be for the
benefit of the issuer or other seller of such Securities) you will comply with
all applicable laws, rules and regulations, including the applicable provisions
of the Securities Act and the Exchange Act, the applicable rules and regulations
of the Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
Furthermore, you acknowledge and agree that certain Offerings
of Securities (i) may be made in the United States only and/or (ii) may be
offerings of Securities of an affiliate of a United States bank but are not
savings accounts, deposits or other obligations of any such bank and would not
be guaranteed by such bank or insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
4. Termination, Supplements and Amendments. This Agreement
shall continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
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00
0. Successors and Assigns. This Agreement shall be binding
on, and inure to the benefit of, the parties hereto and other persons specified
in Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and
conditions set forth herein with respect to any Offering together with such
supplementary terms and conditions with respect to such Offering as may be
contained in any Written Communication from us to you in connection therewith
shall be governed by, and construed in accordance with, the laws of the State of
Illinois.
Please confirm by signing and returning to us the enclosed
copy of this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you will request and have received from us sufficient copies
of the final prospectus or offering circular, as the case may be, with respect
to such Offering in order to comply with your undertakings in Section 3(a) or
3(b) hereof.
Very truly yours,
INCAPITAL LLC
By:
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Xxxxxx X. Xxxxxxxx
Managing Member
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CONFIRMED: ______________________, 20___
[Company]
By:
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Name:
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(Print name)
Title:
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