EXHIBIT 1.1
AMENDED AND RESTATED
SELLING AGENT AGREEMENT
by and among
Bank of America Corporation
and the
Agents named herein
________, 2002
_________, 2002
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 $_______ aggregate principal amount
of its Bank of America Corporation InterNotesSM due nine months or more from
date of issue (the "Notes"). The Notes may be Senior Notes or Subordinated
Notes. The Senior Notes are to be issued pursuant to an amended and restated
indenture dated as of July 1, 2001 between the Company and The Bank of New York
(the "Senior Trustee") (the "Senior Indenture"). The Subordinated Notes are to
be issued pursuant to an amended and restated indenture dated as of July 1, 2001
between the Company and The Bank of New York (the "Subordinated Trustee") (the
"Subordinated Indenture"). The Senior Trustee and the Subordinated Trustee are
collectively referred to herein as the "Trustee," and the Senior Indenture and
the Subordinated Indenture are collectively referred to herein as the
"Indentures." The terms of the Notes are described in the Prospectus referred to
below.
The parties to this Amended and Restated Selling Agent
Agreement (the "Agreement") originally entered into a Selling Agent Agreement,
dated January 22, 2001, as amended and restated on August 22, 2001, and now wish
to amend and restate such agreement as provided herein.
Subject to the terms and conditions contained in this
Agreement, the Company hereby (1) appoints each of you as agent of the Company
("Agent") for the purpose of soliciting offers to purchase the Notes and each of
you hereby agree to use your reasonable best efforts to solicit offers to
purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify and in accordance with
the terms hereof, and after consultation with Incapital LLC (the "Purchasing
Agent") and (2) agrees that whenever the Company determines to sell Notes
pursuant to this Agreement, such Notes shall be sold pursuant to a Terms
Agreement (as defined herein) relating to such sale in accordance with the
provisions of Section V hereof between the Company and the Purchasing Agent,
with the Purchasing Agent purchasing such Notes as principal for resale to other
Agents or dealers (the "Selected Dealers"), each of whom will purchase as
principal. The Company reserves the right to enter into agreements substantially
identical hereto with other agents.
I.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement No. 333-______ relating to the
Notes and the offering thereof, from time to time, in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement and the prospectus filed pursuant to Rule 424 under the 1933 Act,
including all documents incorporated therein by reference, as from time to time
amended or supplemented, including any Pricing Supplement (as defined herein),
are referred to herein as the "Registration Statement" and the "Prospectus,"
respectively. The 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").
II.
The obligations of the Agents hereunder shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the date of any Terms
Agreement (including the filing of any document incorporated by reference
therein) and as of the date of any Terms Agreement, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions.
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) The opinion of Helms Mulliss & Wicker, PLLC, counsel
for the Company, to the effect of paragraphs (i) and (iv) through
(xiii) below, and the opinion of Paul J. Polking, General Counsel to
the Company (or such other attorney, reasonably acceptable to counsel
to the Agents, who exercises general supervision or review in
connection with a particular securities law matter for 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
Bank, 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 such counsel is without
knowledge of any other security interests, claims, liens or
encumbrances;
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(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 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;
(v) Each of the Indentures has been duly
authorized, executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act, and constitutes
a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
subject 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;
(vi) 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, and enforceable against the
Company in accordance with their terms, subject 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;
(vii) The Registration Statement has become
effective under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to such counsel's knowledge, no proceeding for that
purpose has been instituted or threatened; and 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, the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the Trust Indenture Act, and the respective
rules and regulations of the SEC thereunder;
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(viii) The forms of Note attached to the
Secretary's Certificate delivered to the Agents conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(ix) Each of the Indentures conforms in all
material respects to the description thereof contained in the
Prospectus;
(x) Such 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 or Prospectus which is omitted or not
adequately disclosed therein, 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;
(xi) Neither the issuance and sale of the Notes,
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the Certificate of Incorporation or the Bylaws of the
Company, or (1) the terms of any indenture or other material
agreement or instrument known to such counsel and to which the
Company or the Principal Subsidiary Bank is a party or bound,
or (2) any order, law 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;
(xii) No consent, approval, authorization or order
of any court or governmental agency or body is necessary or
required on behalf of the Company for the consummation of the
transactions contemplated herein, except such as have been
obtained under the 1933 Act and such as may be required under
foreign or state securities or insurance laws in connection
with the purchase and distribution of the Notes; and
(xiii) Such counsel is without knowledge of any
rights to the registration of securities of the Company under
the Registration Statement which have not been waived by the
holders of such rights or which have not expired by reason of
lapse of time following notification of the Company's
intention to file the Registration Statement.
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of North Carolina, the United States, or the General Corporate
Law of Delaware, to the extent deemed proper and specified in such
opinion, upon counsel for the Agents or upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agents; and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of
the Company and its subsidiaries and public officials.
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In rendering such opinion, but without opining in connection
therewith, such counsel shall state that, although it expresses no view
as to portions of the Registration Statement consisting of financial
statements and other financial, accounting and statistical information
and it has not independently verified, is not passing upon and assumes
no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus or any
amendment or supplement thereto (other than as stated in (viii) and
(ix) above), it has no reason to believe that such remaining portions
of the Registration Statement or any amendment thereto at the time it
became effective and as of the date of such opinion 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 not misleading or that, subject to the foregoing
with respect to financial statements and other financial, accounting
and statistical information, the Prospectus, as amended or
supplemented, as of its date and as of the date of such opinion
contained or contains 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.
(2) The opinion of Stroock & Stroock & Lavan LLP, counsel
to the Agents, covering the matters referred to in subparagraph (1)
under the subheadings (iv) through (vii), inclusive, above.
In rendering such opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York, the United States or the General Corporation Law of
the State of Delaware, 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 its subsidiaries and public officials.
In rendering such opinion, but without opining in connection
therewith, such counsel shall state that while it has not verified, is
not passing upon and assumes no responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus or any amendment or supplement
thereto (other than as stated in (viii) above), it has participated in
reviews and discussions in connection with the preparation of the
Registration Statement and Prospectus (the documents incorporated by
reference having been prepared and filed by the Company without its
participation), and in the course of such reviews and discussions,
nothing has come to its attention which would lead it to believe that
the Registration Statement at the time it became effective and as of
the date hereof (except for the financial statements, schedules and the
notes thereto and the other financial and statistical data included or
incorporated by reference therein, as to which it expresses no belief)
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 not misleading or that the Prospectus,
as amended or supplemented, as of its date and as of the date of such
opinion (except for
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the financial statements, schedules and the notes thereto and the other
financial and statistical data included or incorporated by reference
therein, as to which it expresses no belief) contained or contains 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.
(c) On the date hereof, the Agents shall have received a
certificate of the Chairman of the Board, Chief Executive Officer or a Senior
Vice President, and the principal financial or accounting officer of the
Company, 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 they are without knowledge that (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has been any material adverse change or any development
involving a prospective material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Prospectus, (ii) the representations
and warranties of the Company contained in this Agreement are not true and
correct with the same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Company has not performed or complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the date of such certificate, (iv) any
stop order suspending the effectiveness of the Registration Statement has been
issued and any proceedings for that purpose have been instituted or threatened
by the SEC and (v) no litigation or proceeding shall be pending to restrain or
enjoin the issuance or delivery of the Notes, or which in any way affects the
validity of the Notes.
(d) On the date hereof, the Agents shall have received a letter
from PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
General Rules and Regulations of the 1933 Act (the "1933 Act
Regulations").
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the General Rules and Regulations under the 1934 Act (the "1934 Act
Regulations").
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board of directors, executive committee and
audit committee of the Company and the boards of directors and
executive committees of its subsidiaries as set forth in the
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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
Statement of Accounting Standards No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the
unaudited interim financial data, if any, for the period from
the date of the latest balance sheet included or incorporated
by reference in the Registration Statement and Prospectus to
the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding the specific items for which representations
are requested below;
nothing has come to their attention as a result of the foregoing procedures that
caused them to believe that:
(2) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in the
Registration Statement and Prospectus, do not comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the 1934 Act Regulations thereunder;
(3) 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;
(4) (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.
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(iv) The letter shall also state that PricewaterhouseCoopers has
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Agents and agreed to by PricewaterhouseCoopers, and has found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(e) On the date hereof and on each Settlement Date (as defined
herein) with respect to any purchase of Notes by the Purchasing Agent, counsel
to the Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Purchasing Agent and to counsel to the Agents.
(f) There shall not have come to the attention of the Purchasing
Agent or any Agent purchasing Notes as principal any facts that would cause such
Agent to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Notes, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the SEC
and (iii) there shall have been no material adverse change not in the ordinary
course of business in the consolidated financial condition of the Company and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus, each of which conditions shall be met on the date
of the Terms Agreement and on the corresponding Settlement Date. Further, if
specifically called for by any written agreement by the Purchasing Agent,
including a Terms Agreement, to purchase Notes as principal, the Purchasing
Agent's obligations hereunder and under such agreement, shall be subject to such
additional conditions, including those set forth in clauses (a), (b) and (c)
above, as agreed to by the parties, each of which such agreed conditions shall
be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained,
the Company covenants as follows:
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(a) The Company will notify the Agents immediately of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus (other than with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information relating thereto (other than such a
request with respect to a document filed with the SEC pursuant to the 1934 Act
which will be incorporated by reference in the Registration Statement and the
Prospectus), and (v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will give the Agents notice of its intention to
file or prepare any additional registration statement with respect to the
registration of additional Notes or any amendment to the Registration Statement
or any amendment or supplement to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rates or maturity dates
of Notes or similar changes or an amendment or supplement effected by the filing
of a document with the SEC pursuant to the 1934 Act) and, upon request, will
furnish the Agents with copies of any such registration statement or amendment
or supplement proposed to be filed or prepared a reasonable time in advance of
such proposed filing or preparation, as the case may be, and will not file any
such registration statement or amendment or supplement in a form as to which the
Agents or counsel to the Agents reasonably object.
(c) The Company will deliver to the Agents without charge, as many
signed and conformed copies 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 as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes under the 1933 Act. Upon
request, the Company will furnish to the Agents a paper copy of any Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K
filed by the Company with the SEC pursuant to the 1934 Act as soon as
practicable after the filing thereof.
(d) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a pricing supplement with
respect to such Notes in substantially the form attached as Exhibit D (a
"Pricing Supplement") and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
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(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 counsel to the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the reasonable opinion of either such counsel,
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes and to cease sales of any
Notes by the Purchasing Agent, and the Company will promptly prepare and file
with the SEC such amendment or supplement, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Except as otherwise provided in subsection (k) of this
Section, on or prior to the date on which there shall be released to the general
public interim financial statement information related to the Company with
respect to each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Company
shall furnish promptly such information to the Agents, confirmed in writing, and
thereafter shall cause promptly the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect thereto,
as well as such other information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(g) Except as otherwise provided in subsection (k) of this
Section, on or prior to the date on which there shall be released to the general
public financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
furnish promptly such information to the Agents and thereafter shall cause
promptly the Registration Statement and the Prospectus to be amended to include
or incorporate by reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Section 11(a) and of Rule 158 under the 1933 Act) 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 the Agents, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of
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the United States as the Agents may designate and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all documents required to
be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) The Company shall not be required to comply with the
provisions of subsections (e), (f) or (g) of this Section or the provisions of
Sections VII(b), (c) and (d) during any period from the time (i) the Agents have
suspended solicitation of purchases of the Notes in their capacity as agent
pursuant to a request from the Company and (ii) the Agents shall not then hold
any Notes as principal purchased from the Purchasing Agent to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently agree for the Purchasing Agent to purchase Notes
as principal.
IV.
(a) The Agents propose to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus and upon
the terms communicated to the Agents from time to time by the Company or the
Purchasing Agent, as the case may be. For the purpose of such solicitation the
Agents will use the Prospectus as then amended or supplemented which has been
most recently distributed to the Agents by the Company, and the Agents will
solicit offers to purchase only as permitted or contemplated thereby and herein
and will solicit offers to purchase the Notes only as permitted by the 1933 Act
and the applicable securities laws or regulations of any jurisdiction. The
Company reserves the right, in its sole discretion, to suspend solicitation of
offers to purchase the Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally) from the
Company, the Agents will suspend promptly solicitation of offers to purchase
until such time as the Company has advised the Agents that such solicitation may
be resumed.
Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in denominations of
$1,000 or more (in multiples of $1,000). The Agents are not authorized to
appoint subagents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein. The Company agrees to
pay the Purchasing
11
Agent, as consideration for soliciting offers to purchase Notes pursuant to a
Terms Agreement, a concession in the form of a discount equal to the percentages
of the initial offering price of each Note actually sold as set forth in Exhibit
A hereto (the "Concession"); provided, however, that the Company and the
Purchasing Agent may agree also to a Concession greater than or less than the
percentages set forth on Exhibit A hereto. The actual aggregate Concession with
respect to each tranche of Notes will be set forth in the related Pricing
Supplement. The Purchasing Agent and the other Agents or Selected Dealers will
share the above-mentioned Concession in such proportions as they may agree.
Unless otherwise authorized by the Company, all Notes shall be
sold to the public at a purchase price not to exceed 100% of the principal
amount thereof, plus accrued interest, if any. Such purchase price shall be set
forth in the confirmation statement of the Agent or Selected Dealer responsible
for such sale and delivered to the purchaser along with a copy of the Prospectus
(if not previously delivered) and Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and
the solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. Unless otherwise provided in a Terms Agreement, the
provisions of the Procedures shall apply to all transactions contemplated
hereunder. The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by each in the
Procedures as amended from time to time. The Procedures may only be amended by
written agreement of the Company and the Agents.
(c) The Company, the Purchasing Agent and each Agent acknowledges
and agrees, and each Selected Dealer will be required to acknowledge and agree,
that the Notes (i) are being offered for sale in the United States only, (ii)
are not savings accounts, deposits or other obligations of the Principal
Subsidiary Bank or any other banking affiliate of the Company, (iii) are not
guaranteed by the Principal Subsidiary Bank or any other banking affiliate of
the Company and (iv) are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
V.
Each sale of Notes shall be made in accordance with the terms
of this Agreement and a separate agreement in substantially the form attached as
Exhibit C (a "Terms Agreement") to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or formula and maturity date or dates of such Notes, the interest payment dates,
if any, the net proceeds to the Company, the initial public offering price at
which the Notes are proposed to be reoffered, and
12
the time and place of delivery of and payment for such Notes (the "Settlement
Date"), whether the Notes provide for a Survivor's Option, whether the Notes are
redeemable or repayable and on what terms and conditions, and any other relevant
terms. In connection with the resale of the Notes purchased, without the consent
of the Company, the Agents are not authorized to appoint subagents or to engage
the service of any other broker or dealer, nor may you reallow any portion of
the Concession paid to you. Terms Agreements, each of which shall be
substantially in the form of Exhibit C hereto, or as otherwise agreed to between
the Company and the Purchasing Agent, may take the form of an exchange of any
standard form of written telecommunication between the Purchasing Agent and the
Company.
VI.
(a) The Company represents and warrants to the Agents as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (including any purchase by the Purchasing Agent as
principal, pursuant to a Terms Agreement or otherwise), as of each Settlement
Date, and as of any time that the Registration Statement or the Prospectus shall
be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement or filed solely for the purpose of disclosure under Item
9 thereof) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Company meets the requirements for use
of Form S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has been declared effective. The
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) (a) the Registration Statement, as amended
or supplemented, the Prospectus and the applicable Indenture
will comply in all material respects with the applicable
requirements of the 1933 Act, the Trust Indenture Act and the
1934 Act and the respective rules and regulations thereunder,
(b) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, and (c) the Prospectus, as amended or
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to
(x) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of
the Trustee (Form T-1) under the Trust Indenture Act of either
of the Trustees or (y) the information contained in or omitted
from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the
13
Company by or on behalf of any Agent specifically for
inclusion in the Registration Statement and the Prospectus.
(iii) The Company has complied and will comply
with all the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and
all regulations promulgated thereunder relating to issuers
doing business in Cuba; provided, however, that in the event
that such Section 517.075 shall be repealed, or amended such
that issuers shall no longer be required to disclose in
prospectuses information regarding business activities in Cuba
or that a broker, dealer or agent shall no longer be required
to obtain a statement from issuers regarding such compliance,
then this representation and agreement shall be of no further
force and effect.
(iv) The documents incorporated by reference or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or
hereafter are filed with the SEC, complied and will comply in
all material respects with the requirements of the 1934 Act
and the rules and regulations of the SEC thereunder and, when
read together with the other information in the Prospectus, at
the date hereof, at the date of the Prospectus and at each
Representation Date, did not and will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) Any certificate signed by any director or officer of the
Company and delivered to the Purchasing Agent or to counsel for the Purchasing
Agent in connection with an offering of Notes or the sale of Notes to the
Purchasing Agent as principal shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
(c) All representations, warranties, covenants and agreements of
the Company contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
(a) Each acceptance by the Company of an offer for the purchase of
Notes, and each delivery of Notes to the Purchasing Agent pursuant to a sale of
Notes to the Purchasing Agent, shall be deemed to be an affirmation that the
representations and warranties of the Company made to the Agents in this
Agreement and in any certificate theretofore delivered pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such
14
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Each time:
(i) the Company accepts a Terms Agreement
requiring such updating provisions;
(ii) the Company files with the SEC an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q that is
incorporated by reference into the Prospectus;
(iii) the Company files with the SEC a Current
Report on Form 8-K required by Item 2 of Form 8-K that is
incorporated by reference into the Prospectus; or
(iv) if required by the Agents after the
Registration Statement or the Prospectus has been amended or
supplemented (other than by an amendment or supplement
providing solely for interest rates, maturity dates or other
terms of Notes or similar changes or an amendment or
supplement which relates exclusively to an offering of
securities other than the Notes),
the Company shall furnish or cause to be furnished forthwith to the
Agents a certificate of the Chairman of the Board, the Chief Executive
Officer or Senior Vice President and the principal financial or
accounting officer of the Company dated the date specified in the
applicable Terms Agreement or dated the date of filing with the SEC of
such supplement or document or the date of effectiveness of such
amendment, as the case may be, in form satisfactory to the Agents to
the effect that the statements contained in the certificate referred to
in Section II(c) hereof which was last furnished to the Agents are true
and correct as of the date specified in the applicable Terms Agreement
or at the time of such filing, amendment or supplement, as the case may
be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of
such certificate, a certificate of the same tenor as the certificate
referred to in said Section II(c), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Each time:
(i) the Company accepts a Terms Agreement
requiring such updating provisions;
(ii) the Company files with the SEC an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
15
(A) the Company files with the SEC a Current
Report on Form 8-K required by Item 2 of
Form 8-K that is incorporated by reference
into the Prospectus; or
(B) the Registration Statement or the Prospectus
has been amended or supplemented (other than
by an amendment or supplement providing
solely for interest rates, maturity dates or
other terms of the Notes or similar changes
or an amendment or supplement which relates
exclusively to an offering of securities
other than the Notes),
the Company shall furnish or cause to be furnished forthwith to the
Agents and counsel to the Agents the written opinions of Helms Mulliss
& Wicker, PLLC, counsel to the Company, and Paul J. Polking, General
Counsel to the Company (or such other attorney, reasonably acceptable
to counsel to the Agents, who exercises general supervision or review
in connection with a particular securities law matter for the Company),
or other counsel satisfactory to the Agents, dated the date specified
in the applicable Terms Agreement or dated the date of filing with the
SEC of such supplement or document or the date of effectiveness of such
amendment, as the case may be, in form and substance satisfactory to
the Agents, of the same tenor as the opinions referred to in Section
II(b)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinions; or, in lieu of such opinions,
counsel last furnishing such opinions to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents may
rely on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance).
(d) Each time:
(i) the Company accepts a Terms Agreement
requiring such updating provisions;
(ii) the Company files with the SEC an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report
on Form 8-K required by Item 2 of
Form 8-K with the SEC that is
incorporated by reference into the
Prospectus; or
(B) the Registration Statement or the
Prospectus has been amended or
supplemented to include additional
financial information required to
be set forth or incorporated by
reference
16
into the Prospectus under
the terms of Item 11 of Form S-3
under the 1933 Act,
the Company shall cause PricewaterhouseCoopers forthwith to furnish the
Agents a letter, dated the date specified in the applicable Terms
Agreement or dated the date of effectiveness of such amendment,
supplement or document filed with the SEC, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section II(d) hereof but
modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same
general tenor as the portions of the letter referred to in clauses
(iii) and (iv) of said Section II(c) with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company;
provided, however, that if the Registration Statement or the Prospectus
is amended or supplemented solely to include financial information as
of and for a fiscal quarter, PricewaterhouseCoopers may limit the scope
of such letter to the unaudited financial statements included in such
amendment or supplement. If any other information included therein is
of an accounting, financial or statistical nature, the Agents may
request procedures be performed with respect to such other information.
If PricewaterhouseCoopers is willing to perform and report on the
requested procedures, such letter should cover such other information.
Any letter required to be provided by PricewaterhouseCoopers hereunder
shall be provided within 10 business days of the filing of the Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, within a reasonable time of a request made pursuant to subparagraph
(iii) hereof or on the date specified in an applicable Terms Agreement.
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
17
conformity with written information furnished to the Company by or on behalf of
such Agent specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereof, or arises out of or is based
upon statements in or omissions from that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification of the
Trustee (Form T-1) under the Trust Indenture Act of either of the Trustees, and
(ii) such indemnity with respect to the Prospectus shall not inure to the
benefit of any Agent (or any person controlling such Agent) from whom the person
asserting any such loss, claim, damage or liability purchased the Notes which
are the subject thereof if the Agent failed to deliver a copy of the Prospectus
as amended or supplemented to such person in connection with the sale of such
Notes excluding documents incorporated therein by reference at or prior to the
written confirmation of the sale of such Notes to such person in any case where
such delivery is required by the 1933 Act and the untrue statement or omission
of a material fact contained in the Prospectus was corrected in the Prospectus
as amended or supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Agent severally 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 inclusion in the Registration Statement or Prospectus or any
amendment or supplement thereof. This indemnity agreement will be in addition to
any liability which any Agent may otherwise have. The Company acknowledges that
(i) the name of such Agent and the statements required by Item 508 of Regulation
S-K set forth in the language on the cover page or under the heading "Plan of
Distribution," (ii) the sentences relating to concessions and reallowances, and
(iii) the paragraph related to stabilization and syndicate covering transactions
in the Prospectus constitute the only information furnished in writing by or on
behalf of the several Agents for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereof, and you, as the Agents,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section VIII of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section VIII, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
except to the extent, if any, that such failure materially prejudices the
indemnifying party. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on
18
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section VIII for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to local
counsel), approved by the Agents in the case of paragraph (a), representing the
indemnified parties under paragraph (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section VIII is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Agents shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Agents may be subject in such proportion so that each Agent is
responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent bears to the total
sales price from the sale of Notes sold to or through the Agents to the date of
such liability, and the Company is responsible for the balance. However, if the
allocation provided by the foregoing sentence is not permitted by applicable
law, the Company and the Agents shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the Agents may be subject in such proportion to
reflect the relative fault of the Company on the one hand and the Agents on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Agent, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Agents agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding anything to the contrary contained herein, (i) in no case shall
an Agent be responsible for any amount in excess of the commissions and
underwriting discounts received by such Agent in connection with the Notes from
which such losses, liabilities, claims, damages and expenses arise and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
19
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
VIII, each person who controls any Agent within the meaning of the 1933 Act
shall have the same rights to contribution as such Agent, and each person who
controls the Company within the meaning of either the 1933 Act or the 1934 Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the provisions of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
IX.
The Company may elect to suspend or terminate the offering of Notes
under this Agreement at any time; the Company also (as to any one or more of the
Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon receipt of instructions from the
Company, the Purchasing Agent shall suspend or terminate the participation of
any Selected Dealer under the Master Selected Dealer Agreement attached hereto
as Exhibit E. Such actions may be taken, in the case of the Company, by giving
prompt written notice of suspension to all of the Agents and by giving not less
than 5 days' written notice of termination to the affected party and the other
parties to this Agreement, or in the case of an Agent, by giving not less than 5
days' written notice of termination to the Company and except that, if at the
time of termination an offer for the purchase of Notes shall have been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto shall not yet have occurred, the Company shall
have the obligations provided herein with respect to such Note or Notes. The
Company shall promptly notify the other parties in writing of any such
termination.
The Purchasing Agent may, and, upon the request of an Agent with
respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the Purchasing Agent to purchase such Notes, immediately
upon notice to the Company at any time prior to the Settlement Date relating
thereto, if (i) there has been, since the date of such agreement, any material
adverse change or any development involving a prospective material adverse
change in the condition (financial or other), earnings, business or properties
of the Company and its subsidiaries the effect of which is such as to make it,
in the judgment of the Purchasing Agent or such Agent, impracticable to market
the Notes or enforce contracts for the sale of the Notes, (ii) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange, (iii) a
banking moratorium or a material disruption in the commercial banking or
securities settlement or clearance services in the United States shall have been
declared by Federal or New York State authorities, (iv) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis (in the United States or elsewhere) the effect of which on the financial
markets of the United States the effect of which is such as to make it, in the
20
judgment of the Purchasing Agent or such Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes or (v) since the date of
such agreement (a) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the SEC for purposes of Rule 436(g)(2)
under the 1933 Act, and (b) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement.
If this Agreement is terminated, Section III(c) and (e), Section VIII
and Section XII hereof shall survive and shall remain in effect; provided that
if at the time of termination of this Agreement an offer to purchase Notes has
been accepted by the Company but the time of delivery to the Purchasing Agent of
such Notes has not occurred, the provisions of all of Section III, Section IV(b)
and Section V shall also survive until time of delivery.
In the event a proposed offering is not completed according to the
terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to an Agent shall be sufficient in all
respects if delivered in person or sent by telex, facsimile transmission
(confirmed in writing), or registered mail to such Agent at its address, telex
or facsimile number set forth on Annex A hereto and if to the Company shall be
sufficient in all respects if delivered or sent by telex, facsimile transmission
(confirmed in writing) or registered mail to the Company at the address
specified below. All such notices shall be effective on receipt.
If to the Company:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell, Senior Vice President
Telecopy: (704) 386-0270
With a copy to:
21
Paul J. Polking
General Counsel
Bank of America Corporation
Bank of America Corporate Center
Legal Department NC1-007-20-01
100 North Tryon Street
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Helms Mulliss & Wicker, PLLC
201 North Tryon Street - Suite 3000
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 343-2300
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.
XI.
This Agreement shall be binding upon the Agents and the Company, and
inure solely to the benefit of the Agents and the Company and any other person
expressly entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the County of New York, New York,
and, by execution and delivery of this Agreement, such party hereby irrevocably
accepts and submits to the jurisdiction of each of the aforesaid courts in
person, generally and unconditionally with respect to any such action or
proceeding for itself and in respect of its property, assets and revenues. Each
party hereby also irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such action or proceeding brought in any such court and any claim that any such
action or proceeding has been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
22
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 as originally filed; (ii) the preparation,
filing and reproduction of this Agreement; (iii) the preparation, issuance and
delivery of the Notes to the Agents, including capital duties, stamp duties and
transfer taxes, if any, payable upon issuance of any of the Notes, the sale of
the Notes and the Agents and the fees and expenses of any transfer agent or
trustee for the Notes; (iv) the fees and expenses of counsel to any such
transfer agent or trustee; (v) the fees and disbursements of the Company's
accountants and counsel; (vi) the reasonable fees and disbursements of counsel
to the Agents incurred from time to time in connection with the transactions
contemplated hereby; (vii) the qualification of the Notes under state securities
laws, including filing fees and the reasonable fees and disbursements of counsel
for the Agents in connection therewith and in connection with the preparation of
any Blue Sky survey; (viii) the printing and delivery to the Agents of copies of
the Registration Statement and of each amendment thereto, of the Prospectus and
any amendments or supplements thereto; (ix) the printing and delivery to the
Agents of copies of any Blue Sky survey; (x) the fees of the National
Association of Securities Dealers, Inc.; (xi) the preparation, printing,
reproduction and delivery to the Agents of copies of the Indentures and all
supplements and amendments thereto; (xii) any fees charged by rating agencies
for the rating of the Notes; (xii) the fees and expenses of any depository and
any nominee thereof in connection with the Notes[; and (xiii) if applicable, the
fees of the __________________ Stock Exchange with prior Company approval.].
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]
23
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
BANK OF AMERICA CORPORATION
By:
------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
---------------------------
Name:
Title:
INCAPITAL LLC
By:
---------------------------
Name:
Title:
A.G. EDWARDS & SONS, INC.
By:
---------------------------
Name:
Title:
CHARLES SCHWAB & CO., INC.
By:
---------------------------
Name:
Title:
24
EDWARD D. JONES & CO., L.P.
By:
-----------------------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:
-----------------------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
-----------------------------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By:
-----------------------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
-----------------------------------------------
Name:
Title:
UBS PAINEWEBBER INC.
By:
-----------------------------------------------
Name:
Title:
25
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
Bank of America Corporate Center
NC 1007-06-07
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: [David Walker]
Fax: (704) 386-9399
Incapital LLC
One North LaSalle Street
Suite 3500
Chicago, Illinois 60602
Attention: Brian Walker
Fax: (312) 379-3701
A.G. Edwards & Sons, Inc.
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Dan Moloney
Fax: (314) 955-5989
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, California 94104
Attention: Kathryn Battles
SF345CAL-19-113
Fax: (415) 667-5090
Edward D. Jones & Co., L.P.
Corporate Bond Department
12555 Manchester Road
St. Louis, Missouri 63131
Attention: Karen Liebsch
Fax: (314) 515-3502
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Global Transaction Management Group
4 World Financial Center Floor 15
New York, New York 10080
Attention: Scott G. Primrose/Keith Lurie
Fax: (212) 449-2234
26
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Michael Fusco
Fax: (212) 761-0780
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Attention: Frederick J. Tate/Frank P. Sinatra
Fax: (212) 778-4456/4556
Salomon Smith Barney Inc.
Medium-Term Note Department
388 Greenwich Street
New York, New York 10013
Attention: Martha Bailey
Fax: (212) 816-0949
UBS PaineWebber Inc.
Taxable Fixed Income Department
Attention: Corporate Desk
800 Harbor Boulevard
Weehawken, New Jersey 07087
Fax: (201) 352-6900
With a copy to:
UBS PaineWebber Inc.
Transaction Management Group
299 Park Avenue
New York, New York 10171
Fax: (212) 821-5536
Attention: Karen Rockey
27
EXHIBIT A
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months.................... 0.200%
23 months to less than 35 months.................... 0.400%
35 months to less than 47 months.................... 0.625%
47 months to less than 59 months.................... 0.750%
59 months to less than 71 months.................... 1.000%
71 months to less than 83 months.................... 1.100%
83 months to less than 95 months.................... 1.200%
95 months to less than 107 months................... 1.300%
107 months to less than 119 months.................. 1.400%
119 months to less than 131 months.................. 1.500%
131 months to less than 143 months.................. 1.600%
143 months to less than 179 months.................. 1.750%
179 months to less than 239 months.................. 2.000%
239 months to less than 360 months.................. 2.500%
360 months or greater............................... 3.000%
A-1
EXHIBIT B
Bank of America Corporation
$-----------
INTERNOTES
DUE FROM NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, due from nine months or more from date of issue, are offered on a
continuing basis by Bank of America Corporation. The Notes will be offered by
Incapital LLC (the "Purchasing Agent"), Banc of America Securities LLC, A.G.
Edwards & Sons, Inc., Charles Schwab & Co., Inc., Edward D. Jones & Co., L.P.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Prudential Securities Incorporated, Salomon Smith Barney, Inc. and
UBS PaineWebber Inc. (collectively, the "Agents"), pursuant to an Amended and
Restated Selling Agent Agreement among the Company and the Agents dated as of
the date hereof (the "Selling Agent Agreement") and one or more terms agreements
substantially in the form attached to the Selling Agent Agreement as Exhibit C
(each a "Terms Agreement"). The Notes are being resold by the Purchasing Agent
(and by any Agent that purchases them from the Purchasing Agent) (i) directly to
customers of the Agents or (ii) to selected broker-dealers (the "Selected
Dealers") for distribution to their customers pursuant to a Master Selected
Dealer Agreement (a "Dealers Agreement") attached to the Selling Agent Agreement
as Exhibit E. The Agents have agreed to use their reasonable best efforts to
solicit purchases of the Notes. The Notes may be either senior debt or
subordinated debt and have been registered with the Securities and Exchange
Commission (the "SEC"). The Bank of New York is the trustee (the "Trustee") for
both the senior and the subordinated debt under amended and restated Indentures
dated as of July 1, 2001, as amended from time to time, between the Company and
the Trustee (the "Indenture") covering the Notes. Pursuant to the terms of the
Indenture, The Bank of New York also will serve as authenticating agent, issuing
agent and paying agent.
Each tranche of Notes will be issued in book-entry only form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for The Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling Agent
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes,
B-1
the Indenture, the Selling Agent Agreement or the Prospectus and the Pricing
Supplement (together, the "Prospectus"), the relevant provisions of the Notes,
the Indenture, the Selling Agent Agreement and the Prospectus shall control.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Selling Agent Agreement, the Prospectus in the
form most recently filed with the SEC pursuant to Rule 424 of the 1933 Act, or
in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated _______, 2002 and a Medium-Term Note Certificate Agreement between
the Trustee and DTC (the "Certificate Agreement") dated ______, 2002 and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). The procedures set forth below may be modified in compliance
with DTC's then-applicable procedures and upon agreement by the Company, the
Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any
date selected by the initial purchaser and agreed to
by the Company. "Maturity" when used with respect to
any Note, means the date on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Maturity Date or by declaration of acceleration, call
for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note
will be dated and issued as of the date of its
authentication by the Trustee.
Each Global Note will bear an original issue date
(the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Identification The Company has received from the CUSIP Service
Numbers: 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 the Purchasing Agent, DTC
and the Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent will
assign CUSIP numbers as described below under
Settlement Procedure "B".
B-2
DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned to
Global Notes. The Company will reserve additional
CUSIP numbers when necessary for assignment to Global
Notes and will provide the Purchasing Agent, the
Trustee and DTC with the list of additional CUSIP
numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Notes having the same
terms (except that Issue Dates need not be the same)
and for which interest, if any, has been paid to the
same date and which otherwise constitute Notes of the
same series and tenor under the Indenture, (b) a
date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the
next Interest Payment Date, if any, for the related
Notes, on which such Global Notes shall be exchanged
for a single replacement Global Note; and (c) a new
CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
participants (including the Issuing Agent) and the
Trustee a written reorganization notice to the effect
that such exchange
B-3
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 $500,000,000 in aggregate
principal or face amount, one replacement Global Note
will be authenticated and issued to represent each
$500,000,000 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 $500,000,000 or any other limit set by DTC
(the "Permitted Amount"). If one or more Notes having
an aggregate principal or face amount in excess of
the Permitted Amount would, but for the preceding
sentence, be represented by a single Global Note,
then one Global Note will be issued to represent each
Permitted Amount principal or face amount of such
Note or Notes and an additional Global Note will be
Issued to represent any remaining principal amount of
such Note or Notes. In such case, each of the Global
Notes representing such Note or Notes shall be
assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
Interest: General. Each Note will bear interest at a fixed
rate. Interest on each Note will accrue from the
Issue Date of such Note for the first interest period
and from the most recent Interest Payment Date to
which interest has been paid for all subsequent
interest periods. Except as set forth hereafter, each
payment of interest on a Note will include interest
accrued to, but excluding, as the case may be, the
Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st
day of a month in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month).
B-4
Any payment of principal, premium or interest
required to be made on a day that is not a Business
Day (as defined below) may be made on the next
succeeding Business Day and no interest shall accrue
as a result of any such delayed payment.
Each pending deposit message described under
Settlement Procedure "C" below will be routed to
Standard & Poor's Corporation, which will use the
message to include certain information regarding the
related Notes in the appropriate daily bond report
published by Standard & Poor's Corporation.
Each Note will bear interest from, and including, its
Issue Date at the rate per annum set forth thereon
and in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available
for payment, in full. Unless otherwise specified in
the applicable Pricing Supplement, interest on each
Note will be payable either monthly, quarterly,
semi-annually or annually on each Interest Payment
Date and at Maturity (or on the date of redemption or
repayment if a Note is repurchased by the Company
prior to maturity pursuant to mandatory or optional
redemption or repayment provisions or the Survivor's
Option). Interest will be payable to the person in
whose name a Note is registered at the close of
business on the Regular Record Date next preceding
each Interest Payment Date; provided, however,
interest payable at Maturity, on a date of redemption
or repayment or in connection with the exercise of
the Survivor's Option will be payable to the person
to whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which
is not a Business Day need not be made on such day,
but may be made on the next succeeding Business Day
with the same force and effect as if made on such
day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise
specified in the applicable Pricing Supplement, any
interest on the Notes will be computed on the basis
of a 360-day year of twelve 30-day months. The
interest rates the Company will agree to pay on
newly-issued Notes are subject to change without
notice by the Company from time to time, but no such
change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the
Company.
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month, commencing in the
calendar month that next succeeds the
B-5
month in which the Note is issued. In the case of a
Note that provides for quarterly interest payments,
the Interest Payment Dates shall be the fifteenth day
of each third month, commencing in the third
succeeding calendar month following the month in
which the Note is issued. In the case of a Note that
provides for semi-annual interest payments, the
Interest Payment Dates shall be the fifteenth day of
each sixth month, commencing in the sixth succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
annual interest payments, the Interest Payment Date
shall be the fifteenth day of every twelfth month,
commencing in the twelfth succeeding calendar month
following the month in which the Note is issued. The
Regular Record Date with respect to any Interest
Payment Date shall be the first day of the calendar
month in which such Interest Payment Date occurred,
except that the Regular Record Date with respect to
the final Interest Payment Date shall be the final
Interest Payment Date.
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Calculation of Interest: Interest on the Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months. (Examples of
interest calculations are as follows: October 1, 1998
to April 1, 1999 equals 6 months and 0 days, or 180
days; the interest paid equals 180/360 times the
annual rate of interest times the principal amount of
the Note. The period from December 3, 1998 to April
1, 1999 equals 3 months and 28 days, or 118 days; the
interest payable equals 118/360 times the annual rate
of interest times the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any weekday that
is (1) not a legal holiday in New York, New York or
Charlotte, North Carolina and (2) not a day on which
banking institutions in those cities are authorized
or required by law or regulation to be closed.
Payments of Principal
and Interest: Payments of Principal and Interest. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest, if any, to be
paid on each Global Note on the following
B-6
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 in the following month. The Trustee, the
Company and DTC will confirm the amounts of such
principal, premium, if any, and interest payments
with respect to each Global Note on or about the
fifth Business Day preceding the Maturity Date of
such Global Note. On the Maturity Date, the Company
will pay to the Trustee, and the Trustee in turn will
pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on
such Maturity Date, at the times and in the manner
set forth below under "Manner of Payment." If the
Maturity Date of any Global Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Maturity Date. Promptly after payment to DTC of
the principal and interest due on the Maturity Date
of such Global Note and all other Notes represented
by such Global Note, the Trustee will cancel and
destroy such Global Note in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Prior to 10:00 a.m., New
York City time, on the date of Maturity or as soon as
possible thereafter, the Trustee will make payment to
DTC in
B-7
accordance with existing arrangements between DTC and
the Trustee, in funds available for immediate use by
DTC, each payment of interest, principal and premium,
if any, due on a Global Note on such date. On each
Interest Payment Date (other than on the Maturity
Date) the Trustee will pay DTC such interest payments
in same-day funds in accordance with existing
arrangements between the Trustee and DTC. Thereafter,
on each such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts
proportionate to their respective holdings in
principal amount of beneficial interest in such
Global Note as are recorded in the book-entry system
maintained by DTC. Neither the Company nor the
Trustee shall have any direct responsibility or
liability for the payment by DTC of the principal of,
or premium, if any, or interest on, the Notes to such
Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the
Maturities, the Issue Price and the interest rates to
be borne by Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set interest rates borne by any Notes in
respect of which the Agents are to solicit orders
(the setting of such interest rates to be referred to
herein as "Posting") or if the Company decides to
change interest rates previously posted by it, it
will promptly advise the Agents of the prices and
interest rates to be posted.
The Purchasing Agent will assign a separate CUSIP
number for each tranche of Notes to be posted, and
will so advise and notify the Company and the Trustee
of said assignment by telephone and/or by telecopier
or other form of electronic transmission. The
Purchasing Agent will include the assigned CUSIP
number on all Posting notices communicated to the
Agents and Selected Dealers.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selected Dealers the
B-8
aggregate principal amount and Maturities of, along
with the interest rates to be borne by, each tranche
of Notes that is the subject of the Posting.
Thereafter, the Purchasing Agent, along with the
other Agents and the Selected Dealers, will solicit
offers to purchase the Notes accordingly.
Purchase of Notes by
the Purchasing Agent: The Purchasing Agent will, no later than 12:00 noon
(New York City time) on the seventh day subsequent to
the day on which such Posting occurs, or if such
seventh day is not a Business Day on the preceding
Business Day, or on such other Business Day and time
as shall be mutually agreed upon by the Company and
the Agents (any such day, a "Trade Day"), (i)
complete, execute and deliver to the Company a Terms
Agreement that sets forth, among other things, the
amount of each tranche that the Purchasing Agent is
offering to purchase or (ii) inform the Company that
none of the Notes of a particular tranche will be
purchased by the Purchasing Agent.
Acceptance and
Rejection of Orders: Unless otherwise agreed by the Company and the
Agents, the Company has the sole right to accept
orders to purchase Notes and may reject any such
order in whole or in part. Unless otherwise
instructed by the Company, the Purchasing Agent will
promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than
those rejected by it in whole or in part in the
reasonable exercise of its discretion. No order for
less than $1,000 principal amount of Notes will be
accepted.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selected
Dealers of the action taken by the Company.
Preparation of Pricing If any offer to purchase a Note is accepted by or on
Supplement: behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agent Agreement as Exhibit D)
reflecting the terms of such Note and will file such
Pricing Supplement with the SEC in accordance with
the applicable paragraph of Rule 424(b) under the
Act. The Company shall use its reasonable best
efforts to send such
B-9
Pricing Supplement by email or telecopy to the
Purchasing Agent and the Trustee by 3:00 p.m. (New
York City Time) on the applicable Trade Day. The
Purchasing Agent shall use its reasonable best
efforts to send such Pricing Supplement and the
Prospectus by email or telecopy or overnight express
(for delivery by the close of business on the
applicable Trade Day, but in no event later than
11:00 a.m. New York City time, on the Business Day
following the applicable Trade Date) to each Agent
(or other Selected Dealer) which made or presented
the offer to purchase the applicable Note and the
Trustee at the following applicable address:
if to Banc of America Securities LLC, to:
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: [David Walker]
Telephone: (704)
Telecopier: (704) 386-9399
if to Incapital LLC, to:
One North LaSalle Street
Suite 3500
Chicago, Illinois 60646-7488
Attention: Brian Walker
Telephone: (312) 379-3700
Telecopier: (312) 379-3701
if to A.G. Edwards & Sons, Inc, to:
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Dan Moloney
Telephone: (314) 955-5000
Telecopier: (314) 955-5989
if to Charles Schwab & Co., Inc., to:
Charles Schwab & Co., Inc.
101 Montgomery Street
an Francisco, California 94101
Attention: Kathryn Battles
SF345CAL-19-113
Telephone: (415) 667-5176
Telecopier: (415) 667-5090
B-10
if to Edward D. Jones & Co., L.P., to:
Corporate Bond Department
12555 Manchester Road
St. Louis, Missouri 63131
Attention: Karen Liebsch
Telephone: (314) 515-5119
Telecopier: (314) 515-3502
if to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to:
Merrill Lynch Production Technologies
44B Colonial Drive
Piscataway, New Jersey 08854
Attention: Prospectus Operations/Nachman Kimerling
Telephone: (732) 885-2768
Telecopier: (732) 885-2774/5/6
email: mtnsuppl@na2.us.ml.com
if to Morgan Stanley & Co. Incorporated, to:
1585 Broadway
2nd Floor
New York, New York 10036
Attention: MTN Trading Desk, Carlos Cabrera
Telephone: (212) 761-4000
Telecopier: (212) 761-0780
if to Prudential Securities Incorporated, to:
111 8th Avenue
New York, New York 10011-0804
Attention: Thomas Sloan
if to Salomon Smith Barney Inc., to:
Brooklyn Army Terminal
140 58th Street
8th Floor
Brooklyn, New York 11220
Attention: Annabelle Avila
Telephone: (718) 765-6725
Telecopier: (718) 765-6734
B-11
if to UBS PaineWebber Inc., to:
Taxable Financial Income Department
Attention: Corporate Desk
800 Harbor Blvd.
Weehawken, New Jersey 07087
Telephone: (201) 352-7150
Telecopier: (201) 352-6900
and if to the Trustee, to:
The Bank of New York
10161 Centurion Parkway
Jacksonville, Florida 32256
Attention: Corporate Trust Department
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or
telecopied to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: James R. Tanenbaum, Esq.
Telephone: (212) 806-5400
Telecopier (212) 806-6006
and to:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: [David Walker]
Telephone: (704) 386-6616
Telecopier: (704) 388-9939
Each such Agent (or Selected Dealer), in turn,
pursuant to the terms of the Selling Agent Agreement
and the Master Selected Dealer Agreement, will cause
to be delivered a copy of the Prospectus and the
applicable Pricing Supplement to each purchaser of
Notes from such Agent or Selected Dealer.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
B-12
Delivery of Confirmation
and Prospectus to Purchaser
by Presenting Agent: Subject to "Suspension of Solicitation; Amendment
or Supplement" below, the Agents will deliver a
Prospectus and Pricing Supplement as herein described
with respect to each Note sold by it.
For each offer to purchase a Note accepted by or on
behalf of the Company, the Purchasing Agent will
confirm in writing with each Agent or Selected Dealer
the terms of such Note, the amount being purchased by
such Agent or Selected Dealer and other applicable
details described above and delivery and payment
instructions, with a copy to the Company.
In addition, the Purchasing Agent, other Agent or
Selected Dealer, as the case may be, will deliver to
investors purchasing the Notes the Prospectus
(including the Pricing Supplement) in relation to
such Notes prior to or simultaneously with delivery
of the confirmation of sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will be
settled within one to three Business Days pursuant to
the timetable for Settlement set forth below, unless
the Company and the purchaser agree to Settlement on
a later date, and shall be specified upon acceptance
of such offer; provided, however, in all cases the
Company will notify the Trustee on the date issuance
instructions are given.
Settlement Procedures: In the event of a purchase of Notes by any Agent, as
agent, appropriate Settlement details, if different
from those set forth below, will be set forth in a
terms agreement to be entered into between such Agent
and the Company pursuant to the Selling Agent
Agreement. Settlement Procedures with regard to each
Note sold by an Agent, as principal for the Company,
shall be as follows:
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:
B-13
1. Principal amount of the purchase;
2. Whether the Notes are Senior or
Subordinated;
3. Interest Rate per annum;
4. Interest Payment Frequency;
5. Settlement Date;
6. Maturity Date;
7. Price to Public;
8. Purchasing Agent's concession
determined pursuant to Section
IV(a) of the Selling Agent
Agreement;
9. Net proceeds to the Company;
10. Trade Date;
11. If a Note is redeemable by the
Company or repayable by the
Noteholder, such of the following
as are applicable:
(i) The date on and after
which such Note may be
redeemed/repaid (the
"Redemption/Repayment
Commencement Date"),
(ii) Initial redemption/
repayment price (% of
par), and
(iii) Amount (% of par) that the
initial redemption/
repayment price shall
decline (but not below
par) on each anniversary
of the Redemption/
Repayment Commencement
Date;
12. Whether the Note has a Survivor's
Option;
13. If a Discount Note, the total
amount of original issue discount,
the yield to maturity and the
initial accrual period of original
issue discount;
B-14
14. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
15. Such other terms as are necessary
to complete the applicable form of
Note.
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time
on the same date) or by telecopier or other
form of electronic transmission of the
information received in accordance with
Settlement Procedure "A" above, the assigned
CUSIP number and the name of the Purchasing
Agent. Each such communication by the
Company will be deemed to constitute a
representation and warranty by the Company
to the Trustee and the Agents that (i) such
Note is then, and at the time of issuance
and sale thereof will be, duly authorized
for issuance and sale by the Company; (ii)
such Note, and the Global Note representing
such Note, will conform with the terms of
the Indenture; and (iii) upon authentication
and delivery of the Global Note representing
such Note, the aggregate principal amount of
all Notes issued under the Indenture will
not exceed the aggregate principal amount of
Notes authorized for issuance at such time
by the Company.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
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.
B-15
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.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Purchasing Agent maintained by DTC and (ii)
debit the settlement account of the
Purchasing Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of such Note
less the Purchasing Agent's concession. 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.
B-16
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Participants
to whom such Note is to be credited
maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the
Purchasing Agent maintained by DTC, in an
amount equal to the price of the Note less
the agreed upon concession 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. Each Agent and Selected Dealer will confirm
the purchase of each Note to the purchaser
thereof either by transmitting to the
Participant to whose account such Note has
been credited a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
purchaser. In all cases the Prospectus as
most recently amended or supplemented must
accompany or precede such confirmation.
M. Each Business Day, the Trustee will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture and setting
forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the
Company has advised the Trustee but which
have not yet been settled.
B-17
Settlement Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details,
if different from those set forth below will be set
forth in the applicable Terms Agreement to be entered
into between the Purchasing Agent and the Company
pursuant to the Selling Agent Agreement.
Settlement Procedures "A" through "M" shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
J-L 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.
If Settlement of a Note is rescheduled or cancelled,
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
B-18
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains Notes having the same terms and
having a principal amount that is at least equal to
the principal amount of such Note to be debited. If
withdrawal messages are processed with respect to all
the Notes issued or to be issued represented by a
Global Note, the Trustee will cancel such Global Note
in accordance with the Indenture, make appropriate
entries in its records and so advise the Company. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to one
or more, but not all, of the Notes represented by a
Global Note, the Trustee will exchange such Global
Note for two Global Notes, one of which shall
represent such Notes and shall be cancelled
immediately after issuance, and the other of which
shall represent the remaining Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Note is not timely paid
to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including
an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through
DTC's participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G"
and "H", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than
default by the Agent in the performance of its
obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on an
equitable basis for its reasonable out-of-pocket
accountable expenses actually incurred and loss of
the use of funds during the period when they were
credited to the account of the Company.
B-19
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to one or more, but not all,
of Notes that were to have been represented by a
Global Note, the Trustee will provide, in accordance
with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Notes to have been represented
by such Global Note and will make appropriate entries
in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change
rates, the Company will promptly advise the Agents of
the new rates, who will forthwith suspend
solicitation of purchases of Notes at the prior
rates. The Agents may telephone the Company with
recommendations as to the changed interest rates.
Suspension of Solicitation
Amendment or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agent
Agreement, the Company may instruct the Agents to
suspend at any time for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions (which may
be given orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
B-20
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents and
the Trustee with copies of any such supplement, and
confirm to the Agents that such supplement has been
filed with the SEC.
Trustee Not
to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, or the
Agents or the purchasers, it being understood by all
parties that payments made by the Trustee to either
the Company or the Agents shall be made only to the
extent that funds are provided to the Trustee for
such purpose.
Advertising Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation
to purchase the Notes. The expense of such
advertising will be solely the responsibility of such
Agent, unless otherwise agreed to by the Company.
B-21
EXHIBIT C
TERMS AGREEMENT
_________, 2002
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Division NC 1-007-23-01
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell, Senior Vice President
The undersigned agrees to purchase the following aggregate principal amount of
Bank of America Corporation Senior/Subordinated InterNotes:
$__________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Senior/Subordinated Notes:
Interest Rate: _____%
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: _________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption/Repayment Date until the Redemption/Repayment Price is 100% of
the Principal Amount.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By:
---------------------
Title:
------------------
ACCEPTED
BANK OF AMERICA CORPORATION
By:
---------------------
Title:
------------------
C-1
Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated: ______________________ Rule 424(b)(2)
(To Prospectus Dated _____________) File No. 333-________
Pricing Supplement No. _________________________
U.S. $__________
BANK OF AMERICA CORPORATION
INTERNOTES(SM)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
_________________________________________________________________
Trade Date: _____________________________
Issue Date: _____________________________
Joint Lead Managers: ____________________
Agents: _________________________________
_________________________________________________________________
- -----------------------------------------------------------------------------------------------------------------
CUSIP AGGREGATE PRICE CONCESSION NET SENIOR OR INTEREST
PRINCIPAL TO PROCEEDS SUBORDINATED RATE
AMOUNT PUBLIC TO ISSUER
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
INTEREST PAYMENT MATURITY SURVIVOR'S OPTION REDEMPTION OR REPAYMENT REDEMPTION/ REPAYMENT
FREQUENCY DATE YES/NO TERMS
- -----------------------------------------------------------------------------------------------------------------
Other Terms:
--------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
D-1
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, as amended (the "Securities Act"), or exempt from registration
thereunder (other than a public offering of Securities effected wholly outside
the United States of America), wherein Incapital LLC clearing through BNY
Clearing Services, LLC (the "Account") (acting for its own Account or for the
account of any underwriting or similar group or syndicate) is responsible for
managing or otherwise implementing the sale of the Securities to selected
dealers ("Selected Dealers") and has expressly informed you that such terms and
conditions shall be applicable. Any such offering of Securities to you as a
Selected Dealer is hereinafter called an "Offering". In the case of any Offering
where we are acting for the account of any underwriting or similar group or
syndicate ("Underwriters"), the terms and conditions of this Agreement shall be
for the benefit of, and binding upon, such Underwriters, including, in the case
of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering: (i) will be subject to delivery of the Securities and their acceptance
by us and any other Underwriters; (ii) may be subject to the approval of all
legal matters by counsel and the satisfaction of other conditions, and (iii) may
be made on the basis of reservation of Securities or an allotment against
subscription. We will advise you by electronic mail, facsimile or other form of
written communication ("Written Communication", which term, in the case of any
Offering described in Section 3(a) or 3(b) hereof, may include a prospectus or
offering circular) of the particular method and supplementary terms and
conditions (including, without limitation, the information
E-1
as to prices and offering date referred to in Section 3(c) hereof) of any
Offering in which you are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision herein,
such terms and conditions shall supersede any such provision. Unless otherwise
indicated in any such Written Communication, acceptances and other
communications by you with respect to an Offering should be sent to Incapital
LLC, One North LaSalle Street, Suite 3500, Chicago, IL 60602, (Fax: (312)
379-3701). 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 is 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 an 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
E-2
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers and the time
when you may commence selling Securities to the public. After such public
offering has commenced, we may change the public offering price, the selling
concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public at no more than the Public Offering Price. If so notified by us, you may
sell Securities to the public at a lesser negotiated price than the Public
Offering Price, but in an amount not to exceed the "Concession." If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in 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
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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 mark-up, if any, paid in connection
with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged
in the investment banking or securities business and either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of section 24 of Article III of
the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker or
dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provisions of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling Concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
(f) Relationship among Underwriters and Selected Dealers. We may
buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. Unless otherwise
specified in a separate agreement between you and us, this agreement does not
authorize you to act as agent for: (i) us; (ii) any Underwriter; (iii) the
issuer; or (iv) other seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. Nothing contained herein
or in any Written Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal 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
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inconsistent with that election. You authorize us, in our discretion, to execute
and file on your behalf such evidence of that election as may be required by the
Internal Revenue Service. In connection with any Offering, you shall be liable
for your proportionate amount of any tax, claim, demand or liability that may be
asserted against you alone or against one or more Selected Dealers participating
in such Offering, or against us or the Underwriters, based upon the claim that
the Selected Dealers, or any of them, constitute an association, an
unincorporated business or other entity, including, in each case, your
proportionate amount of any expense incurred in defending against any such tax,
claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as
to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
Furthermore, you acknowledge and agree that certain Offerings of
Securities (i) may be made in the United States only and/or (ii) may be
offerings of Securities of an affiliate of a United States bank but are not
savings accounts, deposits or other obligations of any such bank and would not
be guaranteed by such bank or insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
4. Termination, Supplements and Amendments. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
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.
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6. Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you will request and have received from us sufficient copies
of the final prospectus or offering circular, as the case may be, with respect
to such Offering in order to comply with your undertakings in Section 3(a) or
3(b) hereof.
Very truly yours,
INCAPITAL LLC
By:
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Thomas S. Ricketts
Managing Member
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CONFIRMED: ______________________, 20___
<<Company>>
By:
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Name:
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(Print name)
Title:
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