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SELLING AGENT AGREEMENT
by and among
Bank of America Corporation
and the
Agents named herein
October __, 2000
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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 $3,000,000,000 aggregate principal amount of
its InterNotes(SM) Due from Nine Months to Thirty Years 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 indenture dated as of October __, 2000 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 indenture
dated as of October __, 2000 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.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting offers to purchase the Notes
from the Company and 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 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 others. 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, are
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively.
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II.
Your obligations hereunder are subject to the following conditions:
(a) On the date hereof, you shall have received the following legal
opinions, dated as of the date hereof and in form and substance satisfactory to
you:
(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, 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 have 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 you 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 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 you or upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for you; 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 you,
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, or that the Prospectus, as amended or supplemented,
contained any untrue statement of a material fact 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.
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(b) On the date hereof, you shall have received a certificate of any
Senior Vice President or Treasurer or any other authorized officer of the
Company satisfactory to you, 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, or in the 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, you shall have received a letter from
PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of the date
hereof and in form and substance satisfactory to you, 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.
(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 described in FAS
No. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the
Company and its
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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 published rules and
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,
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financial and other records of the Company and its subsidiaries
identified in such letter.
(d) On the date hereof and on each Settlement Date with respect to any
purchase of Notes by the Purchasing Agent, counsel to you 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
corresponding Settlement Date. Further, if specifically called for by any
written agreement by the Purchasing Agent to purchase Notes as principal, the
Purchasing Agent's obligations hereunder and under such agreement, shall be
subject to such of the additional conditions 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 you 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 you 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
you 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 you or
your counsel reasonably object.
(c) The Company will deliver to you 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 you as many copies of the Prospectus
(as amended or supplemented) as you 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 you 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 you pursuant to this Agreement, a Pricing Supplement with respect
to such Notes in a form previously approved by you 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 you to cease the solicitation of
offers to purchase the Notes in your capacity as agent 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
such information to you, confirmed in writing, and thereafter shall cause 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 such information to you and thereafter shall cause 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
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, in cooperation with you, to qualify the
Notes for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as you 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 you 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) you have suspended
solicitation of purchases of the Notes pursuant to a request
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from the Company and (ii) the Purchasing Agents shall not then hold any Notes as
principal purchased from the Company, 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) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of 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 purchases of 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, you will forthwith
suspend solicitation of purchases until such time as the Company has advised you
that such solicitation may be resumed.
Unless otherwise instructed by the Company, you are authorized to
solicit orders for the Notes only in denominations of $1,000 or more (in
multiples of $1,000). You are not authorized to appoint subagents or to engage
the service 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 offered through you and may reject any proposed
purchase of Notes as a whole or in part. You shall have the right, in your
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 your
agreements contained herein. The Company agrees to pay the Purchasing Agent, as
consideration for soliciting the sale of the 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 sold as set forth in Exhibit A hereto
(the "Concession"). The Purchasing Agent and the other Agents 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. The actual purchase price paid by
investors for any Note shall be determined by prevailing market prices at the
time of purchase. Such purchase price shall be set forth in the confirmation
statement of the Selling Group Member 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. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. You and the Company each agree to perform the respective duties and
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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 you.
(c) You are aware that other than registering the Notes under the 1933
Act, no action has been or will be taken by the Company that would permit the
offer or sale of the Notes or possession or distribution of the Prospectus or
any other offering material relating to the Notes in any jurisdiction where
action for that purpose is required. Accordingly, you agree that you will
observe all applicable laws and regulations in each jurisdiction in or from
which you may directly or indirectly acquire, offer, sell or deliver Notes or
have in your possession or distribute the Prospectus or any other offering
material relating to the Notes and you will obtain any consent, approval or
permission required by you for the purchase, offer or sale by you of Notes under
the laws and regulations in force in any such jurisdiction to which you are
subject or in which you make such purchase, offer or sale. Neither the Company
nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
(d) The Notes will be offered for sale in the United States only. You,
each Agent and Selling Group Member represent and agree that each of you will:
(1) comply with all applicable laws and regulations in force in any
jurisdiction in which you purchase, offer or sell the Notes or
possess or distribute the Prospectus, including the Conduct Rules
of the National Association of Securities Dealers, Inc. and any
applicable banking agency guidelines for the retail sales of
nondeposit investment products; and
(2) obtain any consent, approval or permission required for the
purchase, offer or sale of the Notes under the laws and regulations
in force in any jurisdiction to which it is subject or in which
such entity makes such purchases, offers or sales.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate 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. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement."
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A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. 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, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, 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 price to be paid to the Company for such Notes, 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 or for
optional redemption by the Company 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 you 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 discount paid to you by the Company. 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 you 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 the issuance of debt securities under the Registration
Statement) (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 become 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 1939 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
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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 1939 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.
(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 Purchasing Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
(c) All representations, warranties and agreements 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 contained in this Agreement and in
any certificate theretofore delivered to the Purchasing Agent pursuant hereto
are true and correct at the time of such acceptance or sale, as the case may me,
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 that (i) there is filed with the SEC any Quarterly Report
on Form 10-Q or Annual Report on Form 10-K that is incorporated by reference
into the Prospectus, or (ii) if required by you, the Registration Statement or
the Prospectus shall be amended or supplemented
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(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 you a certificate
of any Senior Vice President or Treasurer or any other authorized officer of the
Company satisfactory to you (an "Authorized Officer") 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 you to the effect that
the statements contained in the certificate referred to in Section II(b) hereof
which was last furnished to you are true and correct 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 that (i) there is filed with the SEC any Annual Report on
Form 10-K, (ii) if required by you, there is filed any Quarterly Report on Form
10-Q, or (iii) if required by you, the Registration Statement or the Prospectus
shall be 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 solely for the inclusion of additional financial
information 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 you and your counsel the written opinions of Xxxxx
Xxxxx Mulliss & Xxxxx, L.L.P., counsel to the Company, and Xxxx X. Xxxxxxx,
General Counsel to the Company, or other counsel satisfactory to you, 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 you, 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 you shall furnish you with a letter substantially to the effect that
you may rely on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that 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 that (i) there is filed with the SEC any Annual Report on
Form 10-K, (ii) if required by you, there is filed with the SEC any Quarterly
Report on Form 10-Q or (iii) if required by you, the Registration Statement or
the Prospectus shall be 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 you a letter, dated the
date of effectiveness of such amendment, supplement or document filed with the
SEC, as the case may be, in form satisfactory to you, 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
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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, you 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, with respect to any letter required by you pursuant to subparagraph (ii) or
(iii) hereof, the request by you.
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 any 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 1939 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
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agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Agent severally 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
statements set forth in the last two paragraphs on the cover page and the last
paragraph under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information furnished in writing by
or on behalf of the several Agents for inclusion in the documents referred to in
the foregoing indemnity, and you confirm that such statements are correct.
(c) Each Agent agrees to indemnify and hold harmless the Company, the
other Agents, each director and officer of the Company, or of any of the other
Agents, and each person, if any, who controls (within the meaning of Section 15
of the 1933 Act) the Company, or any of the other Agents, against any and all
losses, claims, damages, liabilities, expenses, actions and demands to which
they or any of them may become subject (including all reasonable costs of
investigating, disputing or defending any such claim, action or demand) under
the law of any jurisdiction or which may be made against them arising out of, or
in connection with the breach of an Agent of any of the terms, conditions,
agreements and representations of this Agreement.
(d) 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 otherwise than
under this Section VIII. 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
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18
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by you in the case of
subparagraph (a), representing the indemnified parties under subparagraph (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).
(e) 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 you 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
you 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 such Agent bears to the total sales price
from the sale of Notes sold to or through you to the date of such liability, and
the Company is responsible for the balance; provided, however, that 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 (e). 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 (e), 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
(e).
IX.
Except as provided in Section V hereof, in soliciting purchases of
Notes from the Company, you are acting solely as agent for the Company, and not
as principal. You will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
accepted by the Company, but you shall not have any liability to the Company in
the event such purchase is not consummated for any reason, other than to repay
to the Company any SEC with respect thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you be obligated to purchase any Notes
for your own account.
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X.
This Agreement shall be terminated at any time by either party
hereto upon the giving of five business days written notice of such termination
to the other party hereto. In the event of any such termination, neither party
shall have any liability to the other party hereto, except for obligations
hereunder which expressly survive the termination of this Agreement 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.
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 any condition specified in Section II shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by you by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section III hereof, the provisions concerning payment of expenses under
Section XIV hereof, the indemnity and contribution agreements set forth in
Section VIII hereof, the provisions concerning the representations, warranties
and agreements to survive delivery set forth in Section VI hereof and the
provisions regarding parties set forth under Section XIII hereof shall remain in
effect.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VII, and the
first paragraph of Section XIV shall survive; 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 delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
XI.
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 you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confined in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, Telecopier or registered mail to the
Company at the address specified below. All such notices shall be effective on
receipt.
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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.
XII.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you 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.
XIII.
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
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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.
XIV.
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 you 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 (including "Blue Sky" fees and disbursements);
(vi) if the Company lists Notes on a securities exchange, the costs and fees of
such listing; and (vii) 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 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:
----------------------------------------
Title:
-------------------------------------
Confirmed and accepted
as of the date first above written:
Agent Name
By:
------------------------------
Title:
---------------------------
Agent's Address
Attention:
Telefax:
By:
------------------------------
Title:
---------------------------
Agent's Address
Attention:
Telefax:
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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..................... %
23 months to less than 35 months.................... %
35 months to less than 47 months.................... %
47 months to less than 59 months.................... %
59 months to less than 71 months.................... %
71 months to less than 83 months.................... %
83 months to less than 95 months.................... %
95 months to less than 107 months................... %
107 months to less than 119 months.................. %
119 months to less than 131 months.................. %
131 months to less than 143 months.................. %
143 months to less than 179 months.................. %
179 months to less than 239 months.................. %
239 months to 360 months............................ %
or further
A-1
24
EXHIBIT B
Bank of America Corporation
$3,000,000,000
INTERNOTES
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, Due from Nine Months to Thirty Years 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"), [Name of Agents] (collectively, the
"Agents") pursuant to a Selling Agent Agreement among the Company and the Agents
dated as of the date hereof (the "Selling Agreement") and one or more terms
agreements substantially in the form attached to the Selling 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) to (i) customers of the Agents or (ii) selected broker-dealers (the
"Selling Group") for distribution to their customers pursuant to a Master
Selected Dealers Agreement (a "Dealers Agreement") attached to the Selling
Agreement as Schedule 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 an Indenture dated as of October
__, 2000, 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
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.
B-1
25
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, the Indenture, the Selling Agreement or
the Prospectus and the Pricing Supplement (together, the "Prospectus"), the
relevant provisions of the Notes, the Indenture, the Selling Agreement and the
Prospectus shall control. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Selling 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 October __, 2000 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated October __, 2000
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
Numbers: The Company has received from the CUSIP Service Bureau (the
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 DTC and the Trustee
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with a list of such CUSIP numbers. The Company will assign
CUSIP numbers as described below under Settlement Procedure
"B". 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
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
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participants (including the Issuing Agent) and the Trustee a
written reorganization notice to the effect that such exchange
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
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(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). 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 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 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.
B-5
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The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of each
calendar month (or the next Business Day), commencing in the
calendar month that next succeeds the 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 (or the next Business Day),
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
(or the next Business Day), 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 (or the next Business
Day), 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
4 months and 28 days, or 148 days; the interest payable equals
148/360 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 not a
holiday in New York, New York or Charlotte, North Carolina and
is not a day on which banking institutions in those cities are
authorized or required by law or regulation to be closed.
B-6
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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 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
B-7
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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
by instructing the Trustee to withdraw funds from an account
maintained by the Company with Bank of America, N.A., by wire
transfer to _____________________ or as otherwise agreed with
the Trustee. The Company will confirm such instructions in
writing to 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 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.
B-8
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The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and notify
the Trustee and Purchasing Agent of said assignment by
telephone and/or by telecopier or other form of electronic
transmission. The Purchasing Agent will, in turn, include the
assigned CUSIP number on all Posting notices communicated to
the Agents and Selling Group members.
Offering of
Notes: In the event that there is a Posting, the Purchasing Agent
will communicate to each of the Agents and Selling Group
members the aggregate principal amount and Maturities of,
along with the interest rates to be borne by, each tranche of
Note that is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m. (New York
City time) on the sixth day subsequent to the day on which
such Posting occurs, or if such sixth 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
B-9
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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 Selling
Group members 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 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 and will
supply a copy thereof (or additional copies if requested) to
the Purchasing Agent and one copy to the Trustee. The
Purchasing Agent will cause a Prospectus and Pricing
Supplement to be delivered to each of the other Agents and
Selling Group members that purchased such Notes, and each of
these, in turn, will pursuant to the terms of the Selling
Agent Agreement and the Master Selected Dealer Agreement,
cause to be delivered a copy of the applicable Pricing
Supplement to each purchaser of Notes from such Agent or
Selling Group member.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses prior
to their use. Outdated Pricing Supplements and the
Prospectuses to which 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 solicited by an Agent and
accepted by or on behalf of the Company, the Purchasing Agent
will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the terms of such Note and other
applicable details described above and delivery and payment
instructions. In addition, the Purchasing Agent will deliver
to such purchaser the Prospectus (including the Pricing
Supplement) in relation to such Note prior to or together with
the earlier of any written offer of such Note, delivery of the
confirmation of sale or delivery of the Note.
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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
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 such Agent and the
Company pursuant to the Agreement. Settlement Procedures with
regard to each Note sold by an Agent, as agent for the
Company, shall be as follows:
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;
4. Interest Payment Dates;
5. Settlement Date;
6. Maturity Date;
7. Purchase Price;
8. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agreement;
9. Net proceeds to the Company;
X-00
00
00. Trade Date;
11. If a Note is redeemable by the Company, such
of the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the
"Redemption Commencement Date"),
(ii) Initial redemption price (% of
par), and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary
of the Redemption Commencement
Date;
12. Whether the Note has the 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
B-12
36
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:
1. 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
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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 Agent maintained by DTC and (ii) debit
the settlement account of the 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 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.
L. The Purchasing Agent 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
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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.
For orders of Notes solicited by an Agent, as agent, and
accepted by the Company, 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.
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.
B-15
39
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.
Failure to
Settle: If the Trustee falls 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 Agency Agreement, the
Company will reimburse the Agent on an equitable basis for its
loss of the use of funds during the period when they were
credited to the account of the Company.
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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.
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
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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.
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EXHIBIT C
TERMS AGREEMENT
, 2000
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: ___%
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Dates: __________
Optional Redemption, if any: __________
Initial Redemption Date: __________
Redemption Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is 100% of the Principal
Amount.
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[Any other terms and conditions agreed
to by such Agent and the Company]
INCAPITAL, LLC
By:
----------------------------------------
Title:
-------------------------------------
ACCEPTED
BANK OF AMERICA CORPORATION
By:
----------------------------------
Title:
-------------------------------
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Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated:_________________ Rule 424(b)(3)
(To Prospectus Dated __________, 2000) File No. 333-_________
Pricing Supplement No.____________________
U.S. $3,000,000,000
BANK OF AMERICA CORPORATION
INTERNOTES(SM)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
-----------------------------------------------------------------
Trade Date:____________________
Issue Date:____________________
Agent:_________________________
-----------------------------------------------------------------
CUSIP SENIOR OR INTEREST INTEREST PAYMENT MATURITY PRICE TO
SUBORDINATED RATE FREQUENCY DATE PUBLIC
REALLOWANCE SURVIVOR'S REDEMPTION OR REPAYMENT REDEMPTION/ REPAYMENT
OPTION YES/NO TERMS
Other Terms:
--------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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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 will
be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex 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 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
E-1
46
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, 00 X. Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000 (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 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
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47
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 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.
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(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 selling 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 provision 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. You are not authorized to act as agent
for us, any Underwriter or the issuer or 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 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.
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(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.
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.
5. 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 [State].
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 have requested and received from us
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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,
By:
----------------------------------------
Xxxxxxx X. Xxxxx
Managing Member & Chairman
--------------------------------------------------------------------------------
CONFIRMED: , 20
----------------------- ---
[Company]
By:
-------------------------------------
Name:
-----------------------------------
(Print name)
Title:
----------------------------------
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