EXHIBIT 1.1
AMENDED AND RESTATED
SELLING AGENT AGREEMENT
by and among
Bank of America Corporation
and the
Agents named herein
October 29, 2004
October 29, 2004
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 $6,000,000,000 aggregate principal amount of
its Bank of America Corporation InterNotes(R) due nine months or more from date
of issue (the "Notes"). The Notes may be Senior Notes or Subordinated Notes, of
which $2,775,414,000 aggregate principal amount of the Notes has been issued and
sold to date. 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 August 20,
2002, 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. 333-97157 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 the 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. and
Fleet National Bank (each a "Principal Subsidiary Bank") are
national banking associations formed under the laws of the United
States and authorized thereunder to transact business;
(ii) Each of the Company and each of the Principal Subsidiary
Banks is qualified or licensed to do business as a foreign
corporation in any jurisdiction in which such counsel has knowledge
that the Company or each of the Principal Subsidiary Banks, as the
case may be, is required to be so qualified or licensed;
(iii) All the outstanding shares of capital stock of each of
the Principal Subsidiary Banks have been duly and validly authorized
and issued and are fully paid and (except as provided in 12 U.S.C.
Section 55, as amended) nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock of
each of the Principal Subsidiary Banks (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. Section
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. Section 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.Section 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, and that part of the
Registration Statement which constitutes the Form T-1s, 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, each as amended to date,
or (1) the terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or any
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 any Principal Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any Principal Subsidiary Bank;
(xii) No consent, approval, authorization or order of any
court or governmental agency or body in the United States 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 blue
sky, state securities, insurance laws or similar laws of any
jurisdiction in connection with the purchase and distribution of the
Notes and such other approvals (specified in such opinion) as have
been obtained; 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
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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.
In rendering such opinion, but without opining in connection
therewith, such counsel shall state that, although such counsel expresses
no view as to portions of the Registration Statement consisting of
financial statements and other financial, accounting and statistical
information, and that part of the Registration Statement which constitutes
the Form T-1s, 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), such counsel 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 or
contains any untrue statement of a material fact or omitted or omits 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 or omits to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(2) The opinion of Morrison & Foerster LLP, counsel to the Agents,
covering the matters referred to in subparagraph (1) under the subheadings
(iv) through (ix), 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) and (ix) 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, and that
part of the Registration Statement which
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constitutes the Form T-1s, as to which it expresses no belief) contained
or contains any untrue statement of a material fact or omitted or omits 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 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
or omits to state any material fact 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) any litigation or proceeding is 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 an independent registered public accounting firm with
respect to the Company within the meaning of the 1933 Act and the
applicable rules and regulations thereunder adopted by the SEC.
(ii) In their opinion, the consolidated financial statements of the
Company audited by them and incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the related
rules and regulations adopted by the SEC.
(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
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and audit committee of the Company and the boards of
directors of the Principal Subsidiary Banks as set forth
in the minute books through a specified date not more
than five business days prior to the date of delivery of
such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Accounting Standards No. 100 and 71,
Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of
the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from the
date of the latest balance sheet included or
incorporated by reference in the Registration Statement
and Prospectus to the date of the latest available
interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the foregoing procedures that
caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and
the General Rules and Regulations under the 1934 Act;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Prospectus,
for them to be in conformity with generally accepted accounting
principles;
(3) (A) 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
common stock or consolidated long-term debt (other than scheduled
repayments of such debt) 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 (B) 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 common
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stock or consolidated long-term debt (other than scheduled
repayments of such debt) of the Company and the subsidiaries
on a consolidated basis, except in all instances for changes
or decreases which the Registration Statement and Prospectus
discloses have occurred or may occur, or
PricewaterhouseCoopers shall state any specific changes or
decreases.
(iv) The letter shall also state that PricewaterhouseCoopers has
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Agents and agreed to by PricewaterhouseCoopers, and has found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(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.
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III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) The Company will notify the Agents immediately of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus (other than with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), (iv) any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information relating thereto (other than such a
request with respect to a document filed with the SEC pursuant to the 1934 Act
which will be incorporated by reference in the Registration Statement and the
Prospectus), and (v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(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 (and,
in the case of indexed Notes, a preliminary pricing supplement) with respect to
such Notes substantially in one of the forms
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attached as Exhibit D or such other form as may be agreed upon by the Company
and the Purchasing Agent (each, a "Pricing Supplement") and will file such
Pricing Supplement with the SEC pursuant to Rule 424(b) under the 1933 Act not
later than the close of business on the second business day after the date on
which such Pricing Supplement is first used.
(e) Except as otherwise provided in subsection (k) of this Section, if
at any time during the term of this Agreement any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of 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 General Rules and Regulations under the
1933 Act, 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
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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 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 (together with any
preliminary Pricing Supplement for a series of Notes, if applicable) 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 or specified in the
applicable Terms Agreement or Pricing Supplement, 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
11
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein. The Company agrees to
pay the Purchasing Agent, as consideration for soliciting offers to purchase
Notes pursuant to a Terms Agreement, a concession in the form of a discount
equal to the percentages of the initial offering price of each Note actually
sold as set forth in Exhibit A hereto (the "Concession"); provided, however,
that the Company and the Purchasing Agent also may agree 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
Banks or any other banking affiliate of the Company, (iii) are not guaranteed by
the Principal Subsidiary Banks 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 substantially in one of the forms
attached as Exhibit C or such other form as may be agreed upon by the Company
and the Purchasing Agent (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
12
of Notes by the Company hereunder and the Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall describe the Notes to be purchased pursuant
thereto by the Purchasing Agent as principal, and may specify, among other
things, the principal amount of Notes to be purchased, the interest rate or
formula and maturity date or dates of such Notes, the interest payment dates, if
any, the net proceeds to the Company, the initial public offering price at which
the Notes are proposed to be reoffered, and the time and place of delivery of
and payment for such Notes (the "Settlement Date"), whether the Notes provide
for a Survivor's Option, whether the Notes are redeemable or repayable and on
what terms and conditions, and any other relevant terms. In connection with the
resale of the Notes purchased, without the consent of the Company, the Agents
are not authorized to appoint subagents or to engage the service of any other
broker or dealer, nor may you reallow any portion of the Concession paid to you.
Terms Agreements, each of which shall be substantially in one of the forms
attached as Exhibit C or such other form as may be agreed upon by 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 furnished solely for the purpose of disclosure under Item 7.01
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,
13
that the Company makes no representations or warranties as to (x)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1)
under the Trust Indenture Act of either of the Trustees or (y) the
information contained in or omitted from the Registration Statement
or the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Agent specifically for
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
14
made to the Agents in this Agreement and in any certificate theretofore
delivered pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the Purchasing
Agent of the Note or Notes relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Each time:
(i) the Company accepts a Terms Agreement requiring such
updating provisions;
(ii) the Company files 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 2.01 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;
15
(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 with the SEC a Current Report on
Form 8-K required by Item 2.01 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 the 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:
16
(A) the Company files a Current Report on Form 8-K
required by Item 2.01 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 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 that 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
17
the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Agent specifically for 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.
(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
18
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section VIII for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (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
19
anything to the contrary contained herein, (i) in no case shall an Agent be
responsible for any amount in excess of the commissions and underwriting
discounts received by such Agent in connection with the Notes from which such
losses, liabilities, claims, damages and expenses arise and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 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) since the date of
such agreement, trading in any securities of the Company has been suspended by
the SEC or a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for
20
prices for securities have been required, by either of said exchanges or by
order of the SEC or any other governmental authority, (iii) a material
disruption in the commercial banking or securities settlement or clearance
services in the United States has occurred or a banking moratorium 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
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) a 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) any 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 by such Agent, and the
Company shall remain responsible for such other expenses set forth in Section
XIII.
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.
21
If to the Company:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-07-06
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell, Senior Vice President
Fax: (704) 386-0270
With copies to:
Bank of America Corporation
Bank of America Corporate Center
Legal Department, NC1-007-52-13
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: General Counsel
Fax: (704) 370-3515
and
Helms Mulliss & Wicker, PLLC
201 North Tryon Street - Suite 3000
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Fax: (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
22
respect of its property, assets and revenues. Each party hereby also irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any such action or proceeding
brought in any such court and any claim that any such action or proceeding has
been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such
person hereby states that at the time of the execution of this Agreement he has
no notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement 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, with prior Company approval, the fees of the New York Stock
Exchange.
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: /s/ Page P. C. Stephens
----------------------------
Name: Page P. C. Stephens
Title: Senior Vice President
Confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
----------------------------------
Name: Lily Chang
Title: Principal
INCAPITAL LLC
By: /s/ Joseph Novak
----------------------------------
Name: Joseph Novak
Title: General Counsel & Secretary
A. G. EDWARDS & SONS, INC.
By: /s/ Joyce Opinski
----------------------------------
Name: Joyce Opinski
Title: Vice President
CHARLES SCHWAB & CO., INC.
By: /s/ Peter J. Campfield
-------------------------------
Name: Peter J. Campfield
Title: Vice President -- Fixed
Income Trading
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Martha Bailey
---------------------------------
Name: Martha Bailey
Title: Senior Vice President
EDWARD D. JONES & CO., L.P.
By: /s/ Philip Schwab
---------------------------------
Name: Philip Schwab
Title: General Principal
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
---------------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot, III
---------------------------------
Name: Harold J. Hendershot, III
Title: Executive Director
UBS FINANCIAL SERVICES INC.
By: /s/ James LeBlanc
---------------------------------
Name: James LeBlanc
Title: Senior Vice President
By: /s/ Karen A. Rockey
---------------------------------
Name: Karen A. Rockey
Title: Senior Vice President
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ George J. Curci
---------------------------------
Name: George J. Curci
Title: Senior Vice President
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
Hearst Tower
214 North Tryon Street
NC1-027-15-01
Charlotte, North Carolina 28255
Attention: David J. Walker
Fax: (704) 388-9939
Incapital LLC
One North LaSalle Street
Suite 3500
Chicago, Illinois 60602
Attention: Susan Lipe
Fax: (312) 379-3701
A.G. Edwards & Sons, Inc.
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Julie Perniciaro
Fax: (314) 955-5989
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, California 94104
Attention: Peter Campfield
SF345CAL-19-113
Fax: (415) 667-5090
Citigroup Global Markets Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: Martha Bailey
Fax: (212) 816-0949
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
Fax: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Greg Hamwi
Fax: (212) 507-2460
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway
4th Floor
New York, New York 10036
Attention: Financing Services Group
Fax: (212) 507-2409
UBS Financial Services Inc.
800 Harbor Boulevard
Weehawken, New Jersey 07086-6793
Attention: Corporate Desk, Taxable Fixed Income Department
Fax: (201) 352-6900
With a copy to:
UBS Financial Services Inc.
Transaction Management Group
299 Park Avenue
New York, New York 10171
Attention: Karen Rockey
Fax: (212) 821-5536
Wachovia Capital Markets, LLC
901 E. Byrd Street
West Tower, 3rd Floor
Richmond, Virginia 23219
Attention: George J. Curci
Fax: (804) 868-2296
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 18 months................... 0.200%
18 months to less than 23 months................... 0.300%
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............................... 3.150%
A-1
EXHIBIT B
Bank of America Corporation
$6,000,000,000
INTERNOTES(R)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes(R), 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., Citigroup Global Markets Inc.,
Edward D. Jones & Co., L.P., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated, UBS Financial Services Inc. and Wachovia
Capital Markets, LLC (collectively, the "Agents"), pursuant to an Amended and
Restated Selling Agent Agreement among the Company and the Agents dated October
29, 2004 (the "Selling Agent Agreement") and one or more terms agreements
substantially in one of the forms attached to the Selling Agent Agreement as
Exhibit C or such other form as may be agreed upon by the Company and the
Purchasing Agent (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 and
supplemented from time to time, between the Company and the Trustee (the
"Indentures"), covering the Notes. Pursuant to the terms of the Indentures, 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 applicable Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
B-1
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the applicable Indenture, the Selling
Agent Agreement or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the applicable 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 applicable
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 August 20, 2002 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated April 14, 1989
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 that bear interest at a fixed rate ("Fixed-Rate
Notes") issued in book-entry form having the same Original
Issue Date (as defined below), interest rate, day-count
convention, Regular Record Dates, Interest Payment Dates,
Registrar, depository, redemption and/or repayment terms, if
any, and Stated Maturity Date will be represented initially by
a single Global Note. All Notes that bear interest at a
floating rate ("Floating-Rate Notes") issued in book-entry
form having the same Issue Date and formula for the
calculation of interest, specifying the same base rate, or any
other rate set forth by the Company, initial interest rate,
index maturity, spread or spread multiplier (if any), minimum
interest rate (if any), maximum interest rate (if any),
redemption and/or repayment terms (if any), and Stated
Maturity Date will be represented initially by a single Global
Note. All Notes in which the amount of principal, premium, if
any, interest or other amounts payable, if any, is determined
by reference,
B-2
either directly or indirectly, to the price, performance or
levels of one or more securities, currencies or composite
currencies, commodities, interest rates, inflation rates,
stock indices or other indices or formulae ("Indexed Notes")
issued in book-entry form having the same Issue Date,
underlying index, credit or formula, initial interest rate,
minimum interest rate (if any), maximum interest rate (if
any), redemption and/or repayment terms (if any), and Stated
Maturity Date will be represented initially by a single Global
Note.
Each Global Note will be dated and issued the date of its
authentication by the Trustee.
Each Global Note will bear an original issue date (the "Issue
Date"). The Issue Date shall remain the same for all Notes
subsequently issued upon transfer, exchange or substitution or
an original Note regardless of their dates of authentication.
For other variable terms with respect to the Notes, see the
Prospectus and the applicable Pricing Supplement.
Identification The Company has received from the CUSIP Service Bureau (the
Numbers: CUSIP Service Bureau") of Standard & Poor's Corporation
("Standard & Poor's") one series of CUSIP numbers consisting
of approximately 900 CUSIP numbers for future assignment to
Global Notes. The Company will provide the Purchasing Agent,
DTC and the Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent will assign CUSIP
numbers as described below under Settlement Procedure "B". 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
applicable 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
B-3
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 applicable 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 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).
B-4
Denominations: Unless otherwise agreed by the Company or specified
in the applicable Terms Agreement or Pricing Supplement, 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 in accordance with
its terms. 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.
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 set forth thereon and in the applicable
Pricing Supplement until the principal amount thereof is paid,
or made available for payment, in full, in accordance with the
terms of such Note. 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
B-5
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, interest or
other amounts payable required to be made on a Note on a day
which is not a Business Day (other than the Maturity Date)
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. However, in the case of a
Floating-Rate Note based on the London interbank offered note
("LIBOR"), if an applicable Interest Payment Date is not a
Business Day and the next succeeding Business Day occurs in
the next calendar month, then the Interest Payment Date shall
be the immediately proceeding Business Day. 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
with the same force and effect as if made on such Maturity
Date, and no interest shall accrue on such payment for the
period from and after such Maturity Date. 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 Fixed-Rate 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 month in which the Note is issued. In the
case of a Fixed-Rate 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 Fixed-Rate 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 Fixed-Rate 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.
B-6
Interest Payments Dates for a Floating-Rate Note or Indexed
Note with interest that resets daily, weekly or monthly shall
be a date that occurs in each month (unless, in the case of an
Indexed Note, otherwise specified in the applicable Pricing
Supplement), as specified in the applicable Pricing
Supplement. In the case of a Floating-Rate Note or Indexed
Note with interest that resets quarterly, the Interest Payment
Date shall be a date that occurs in each third month, as
specified in the applicable Pricing Supplement. In the case of
a Floating-Rate Note or Indexed Note with interest that resets
semi-annually, the Interest Payment Date shall be a date, as
specified in the applicable Pricing Supplement, that occurs in
each of the two months specified in the applicable Pricing
Supplement. In the case of a Floating-Rate Note or Indexed
Note with interest that resets annually, the Interest Payment
Date shall be a date, as specified in the applicable Pricing
Supplement, that occurs the month of each year specified in
the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing
Supplement, the Regular Record Date with respect to any
Interest Payment Date for a Fixed-Rate Note shall be the first
day of the calendar month in which such Interest Payment Date
occurs, whether or not such day is a Business Day, except that
the Regular Record Date with respect to the final Interest
Payment Date shall be the final Interest Payment Date. Unless
otherwise specified in the applicable Pricing Supplement, the
Regular Record Date with respect to any Interest Payment Date
for a Floating-Rate Note or Indexed Note shall be the
fifteenth calendar day immediately preceding such Interest
Payment Date, whether or not such day is a Business Day,
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 Fixed-Rate 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
B-7
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.)
The interest rate on each Floating-Rate Note will be
calculated by reference to the specified interest rate basis
or formula, plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as set forth in the applicable
Pricing Supplement. The "Spread" is the number of basis points
specified by the Company on the Floating-Rate Note to be added
to or subtracted from the base rate. The "Spread Multiplier"
is the percentage specified by the Company on the
Floating-Rate Note by which the base rate is multiplied in
order to calculate the applicable interest rate.
Accrued interest on Floating-Rate Notes is calculated by
multiplying the principal amount of a Note by an accrued
interest factor. This accrued interest factor is the sum of
the interest factors calculated for each day in the period for
which accrued interest is being calculated. Unless otherwise
indicated in the applicable Pricing Supplement, the accrued
interest factor will be computed and interest will be paid
(including payments for partial periods) as follows:
(a) for Floating-Rate Notes based on the federal funds rate,
LIBOR, the prime rate, or any other floating rate other than
the treasury rate, the daily interest factor will be computed
by dividing the interest rate in effect on that day by 360;
and
(b) for Floating-Rate Notes based on the treasury rate, the
daily interest factor will be computed by dividing the
interest rate in effect on that day by 365 or 366, as
applicable.
All dollar amounts used in or resulting from any calculation
on Floating-Rate Notes will be rounded to the nearest cent
with one-half cent being rounded upward. Unless otherwise
specified in the applicable Pricing Supplement, all
percentages resulting from any calculation with respect to a
Floating-Rate Note will be rounded, if necessary, to the
nearest one hundred-thousandth of a percent, with five
one-millionths of a percentage point rounded upwards, e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655).
Interest on Indexed Notes, to the extent applicable, will be
calculated as set forth in the applicable Pricing Supplement.
B-8
Business Day: "Business Day" means, for any Note other than a
Floating-Rate Note based on LIBOR, and 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, (2) not a day on which banking
institutions in those cities are authorized or required by law
or regulation to be closed, and (3) with respect to a
Floating-Rate Note based on LIBOR, a London Banking Day. A
"London Banking Day" means any day in which commercial banks
are open for business (including dealings in U.S. dollars) in
London, England.
Payments of
Principal
and Interest: Payments of Principal and Interest. Promptly after each
Regular Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the amount
of interest, if any, to be paid on each Global Note on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with a Maturity Date) and the total of
such amounts. DTC will confirm the amount payable on each
Global Note on such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's. On such
Interest Payment Date, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, such total amount of
interest due (other than on the Maturity Date), at the times
and in the manner set forth below under "Manner of Payment."
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
B-9
such Global Note, the Trustee will cancel and destroy such
Global Note in accordance with the applicable 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 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 Maturities, the Issue Price and the interest rates to be
borne by Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company decides
to set interest rates borne by any Notes in respect of which
the Agents are to solicit orders (the setting of such interest
rates to be referred to herein as "Posting") or if the Company
decides to change interest rates previously posted by it, it
will promptly advise the Agents of the prices and interest
rates to be posted.
B-10
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 fax 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 Maturities of, along with the interest rates to be borne
by, each tranche of Notes that is the subject of the Posting.
In the case of Indexed Notes, the Company shall furnish copies
of the Prospectus (including any preliminary Pricing
Supplement) to the Agents for delivery in connection with
soliciting orders, and file such preliminary Pricing
Supplement with the SEC in accordance with the applicable
paragraph of Rule 424(b) under the Act. 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 the minimum denomination of
the Notes will be accepted.
B-11
Upon receipt of a completed and executed Terms Agreement from
the Purchasing Agent, the Company will (i) promptly execute
and return such Terms Agreement to the Purchasing Agent or
(ii) inform the Purchasing Agent that its offer to purchase
the Notes of a particular tranche has been rejected, in whole
or in part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selected Dealers of
the action taken by the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on behalf of
the Company, the Company will provide a Pricing Supplement
(substantially in one of the forms attached to the Selling
Agent Agreement as Exhibit D or such other form as may be
agreed upon by the Company and the Purchasing Agent)
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 Pricing Supplement by
email or fax 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 fax 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:
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telephone: (212) 847-6466
Fax: (212) 847-5184
if to Incapital LLC, to:
One North LaSalle Street
Suite 3500
Chicago, Illinois 60646-7488
Attention: Susan Lipe
Telephone: (312) 379-3700
Fax: (312) 379-3701
B-12
if to A.G. Edwards & Sons, Inc, to:
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Julie Perniciaro
Telephone: (314) 955-5000
Fax: (314) 955-0100
if to Charles Schwab & Co., Inc., to:
101 Montgomery Street
San Francisco, California 94101
Attention: Peter Campfield
SF345CAL-19-115
Telephone: (415) 667-5072
Fax: (415) 667-5087
if to Citigroup Global Markets Inc., to
390 Greenwich Street, 4th floor
New York, New York 10013
Attention: Martha Bailey
Telephone: (212) 816-5831
Fax: (212) 816-0949
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
Fax: (314) 515-3502
if to Merrill Lynch, Pierce, Fenner & Smith Incorporated, to:
ADP Integrated Distribution Services
1155 Long Island Ave.
Edgewood, New York 11717
Attention: Charmany Hill/MTNs
Telephone: (631) 254-7118
Fax: (631) 254-7132
if to Morgan Stanley & Co. Incorporated, to:
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Greg Hamwi
Telephone: (212) 761-2206
Fax: (212) 507-2460
B-13
With a copy to:
ADP
1155 Long Island Ave.
Edgewood, New York 11717
Attention: Morgan Stanley Prospectuses
if to UBS Financial Services Inc., to:
800 Harbor Blvd.
Weehawken, New Jersey 07086-6793
Attention: Corporate Desk, Taxable Fixed Income
Telephone: (201) 352-7150
Fax: (201)-271-9172
if to Wachovia Capital Markets, LLC, to
901 E. Byrd Street
West Tower, 3rd Floor
Richmond, Virginia 23219
Attention: George J. Curci
Telephone: (804) 868-2205
Fax: (804) 868-2296
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 preliminary and
final Pricing Supplement, as so filed, shall also be mailed or
faxed to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104-0050
Attention: James R. Tanenbaum, Esq.
Telephone: (212) 468-8163
Fax (212) 468-7900
B-14
and to:
Banc of America Securities LLC
Hearst Tower
214 North Tryon Street
NC1-027-15-01
Charlotte, North Carolina 28255
Attention: David J. Walker
Fax: (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.
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
final 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 final
Pricing Supplement) in relation to such Notes prior to or
simultaneously with delivery of the confirmation of sale or
delivery of the Note.
B-15
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:
1. Principal amount of the purchase;
2. Whether the Notes are Senior or Subordinated;
B-16
3. (a) Fixed-Rate Notes:
(i) Interest Rate,
(ii) Interest Payment Dates, and
(iii) Regular Record Dates.
(b) Floating-Rate Notes:
(i) Base Rate or Rates,
(ii) Initial Interest Rate,
(iii) Spread and/or Spread Multiplier, if any,
(iv) Interest Reset Date or Dates,
(v) Interest Reset Period,
(vi) Interest Payment Dates,
(vii) Regular Record Dates,
(viii)Index Maturity,
(ix) Maximum and Minimum Interest Rates, if
any, and
(x) Calculation Agent.
(c) Indexed Notes:
(i) Base Rate(s),
(ii) Initial Reset Dates,
(iii) Spread and/or Spread Multiplier, if any,
(iv) Underlying index, credit or formula,
(v) Interest (or Other Amounts Payable)
Reset Dates(s),
(vi) Interest (or Other Amounts Payable)
Reset Period,
(vii) Interest (or Other Amounts Payable)
Payment Dates(s),
(viii)Regular Record Dates, if any, (ix)
Maximum and Minimum Interest Rates, if
any,
(x) Calculation Agent, and
(xi) Whether the Notes will be convertible or
exchangeable and, if so, the terms of
such conversion or exchange;
4. Settlement Date;
5. Maturity Date;
6. Price to Public;
B-17
7. Purchasing Agent's concession determined pursuant
to Section IV(a) of the Selling Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. 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),
(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,
and
(iv) In the case of Indexed Notes, any other
material terms relating to redemption/
repayment;
11. Whether the Note has a Survivor's Option;
12. If a Discount Note, the total amount of original
issue discount, the yield to maturity and the
initial accrual period of original issue discount;
13. DTC Participant Number of the institution through
which the customer will hold the beneficial
interest in the Global Note;
14. If a Note is to be listed on a stock exchange, the
name of such exchange.
15. If a Note has a minimum denomination other than
$1,000, such other minimum denomination; and
B-18
16. 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 fax 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 applicable Indenture; and (iii) upon authentication
and delivery of the Global Note representing such Note,
the aggregate principal amount of all Notes issued under
the applicable Indenture will not exceed the aggregate
principal amount of Notes authorized for issuance at
such time by the Company.
C. The Trustee will communicate to DTC and the Purchasing
Agent through DTC's Participant Terminal System, a
pending deposit message specifying the following
Settlement information:
1. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts maintained
by DTC on behalf of the Trustee and the Purchasing
Agent.
3. Identification of the Global Note as a Fixed-Rate
Note, a Floating-Rate Note or an Indexed Note.
B-19
4. 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) (or, in the case of
Floating-Rate Notes, which reset daily or weekly,
the date five calendar days preceding the Interest
Payment 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).
5. The CUSIP number of the Global Note representing
such Notes.
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-20
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 (including the final Pricing Supplement) 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 applicable
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-21
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-22
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 applicable 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-23
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 (including the final
Pricing Supplement) 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 (including the final
Pricing Supplement) may not be so delivered.
B-24
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 SEC 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-25
EXHIBIT C
TERMS AGREEMENT
Part I: Form of Terms Agreement for Fixed-Rate Notes
Bank of America Terms Agreement
Bank of America Corporation
100 North Tryon Street, NC 1-007-07-06
Charlotte, NC 28255
Bank of America InterNotes(R)
The undersigned agrees to purchase the following InterNotes(R)
Clearing Information: __________
The terms of such InterNotes(R) shall be as follows:
CUSIP Number: __________
Principal Amount: __________
Issue Price (as % of par): __________
Commission: __________
Net Proceeds to Issuer: __________
Important Dates:
Posting Date: __________
Trade Date: __________
Maturity Date: __________
Coupon Type: __________
Coupon: __________
Coupon Payments: __________
Settlement Date: __________
Survivor's Option: __________
Collateral Type: __________
Moody's Rating: __________
S & P Rating: __________
Redemption Info: __________
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company, including, without limitation, a minimum denomination other than $1,000
and whether the Notes will be listed on an exchange.]
Electronically Presented by: INCAPITAL LLC
Accepted by: BANK OF AMERICA CORPORATION
C-1
Part II: Form of Terms Agreement for Floating-Rate Notes
Bank of America Terms Agreement
Bank of America Corporation
100 North Tryon Street, NC 1-007-07-06
Charlotte, NC 28255
Bank of America InterNotes(R)
The undersigned agrees to purchase the following InterNotes(R)
Clearing Information: __________
The terms of such InterNotes(R) shall be as follows:
CUSIP Number: __________
Principal Amount: __________
Issue Price (as % of par): __________
Commission: __________
Net Proceeds to Issuer: __________
Important Dates:
Posting Date: __________
Trade Date: __________
Settlement Date: __________
Maturity Date: __________
Coupon Type: __________
Interest Rate Basis: __________
Index Maturity: __________
Spread to Interest Rate Basis: __________
Interest Payment Dates: __________
Interest Reset Dates: __________
Minimum Interest Amount: __________
Day Count Basis: __________
Survivor's Option: __________
Collateral Type: __________
Moody's Rating: __________
S & P Rating: __________
Redemption Info: __________
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company, including, without limitation, a minimum denomination other than $1,000
and whether the Notes will be listed on an exchange.]
Electronically Presented by: INCAPITAL LLC
Accepted by: BANK OF AMERICA CORPORATION
C-2
Part III: Form of Terms Agreement for Consumer Price Index Linked Notes
_________, 20__
Bank of America Terms Agreement
Bank of America Corporation
100 North Tryon Street, NC 1-007-07-06
Charlotte, NC 28255
Bank of America InterNotes(R)
The undersigned agrees to purchase the following InterNotes(R)
Clearing Information: __________
The terms of such InterNotes(R) shall be as follows:
CUSIP Number: __________
Principal Amount: __________
Issue Price (as % of par): __________
Commission: __________
Net Proceeds to Issuer: __________
Important Dates:
Posting Date: __________
Trade Date: __________
Settlement Date: __________
Maturity Date: __________
Coupon Type: __________
Interest Rate Basis: __________
Index Maturity: __________
Spread to Interest Rate Basis: __________
Interest Payment Dates: __________
Interest Reset Dates: __________
Minimum Interest Amount: __________
Day Count Basis: __________
Survivor's Option: __________
Collateral Type: __________
Moody's Rating: __________
S & P Rating: __________
Redemption Info: __________
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company, including, without limitation, a minimum denomination other than $1,000
and whether the Notes will be listed on an exchange.]
Electronically Presented by: INCAPITAL LLC
Accepted by: BANK OF AMERICA CORPORATION
C-3
C-4
Exhibit D
Part I: Form of Pricing Supplement for Fixed-Rate Notes
Filed under Rule 424(b)(3), Registration Statement No. 33-97157
Pricing Supplement No. ____ - dated ______, __________ __, 2004 (To: Prospectus
Dated October 29, 2004)
Bank of America Corporation
100 North Tryon Street, NC1-007-07-06
Charlotte, NC 28255
Bank of America Corporation
$6,000,000,000 Bank of America InterNotes(R)
Prospectus dated 29-Oct-04
Aggregate Price
Principal to Gross Net
CUSIP Number Amount Public Concession Proceeds Coupon Type Coupon Rate
- ------------ --------- ------ ---------- -------- ----------- -----------
- ------------ --------- ------ ---------- -------- ----------- -----------
Maturity 1st Coupon
Coupon Frequency Date 1st Coupon Date Amount Survivor's Option Product Ranking
- ---------------- -------- --------------- ---------- ----------------- ---------------
- ---------------- -------- --------------- ---------- ----------------- ---------------
Redemption Information:_________________________________
Joint Lead Managers and Lead Agents:____________________
Agents:_________________________________________________
Trade Date:_____________________________________________
Settlement Date:________________________________________
Minimum Denominations/Increments:_______________________
S & P Ratings Services Rating:__________________________
Moody's Investor Services Rating:_______________________
Other Terms:____________________________________________
D-1
Part II: Form of Pricing Supplement for Floating-Rate Notes
Filed under Rule 424(b)(3) Registration Statement No. 33-97157
Pricing Supplement No. ____ - dated ______, __________ __, 2004 (To: Prospectus
Dated October 29, 2004)
Bank of America Corporation
100 North Tryon Street, NC1-007-07-06
Charlotte, NC 28255
Bank of America Corporation
$6,000,000,000 Bank of America InterNotes(R)
Prospectus dated 29-Oct-04
Spread to
Principal Gross Net Interest Index Interest
CUSIP Number Amount Concession Proceeds Coupon Type Rate Basis Maturity Rate Basis
- ------------ --------- ---------- -------- ----------- ---------- -------- ----------
- ------------ --------- ---------- -------- ----------- ---------- -------- ----------
Maturity Interest Reset Maximum Initial Interest Interest Payment
Date Dates Interest Amount Rate 1st Coupon Date Dates Day Count Basis
- -------- -------------- --------------- ---------------- --------------- --------------- ---------------
- -------- -------------- --------------- ---------------- --------------- --------------- ---------------
Survivor's Option Product Ranking Moody's Rating S & P Rating
- ----------------- --------------- -------------- ------------
- ----------------- --------------- -------------- ------------
Redemption Information:_____________________________
Joint Lead Managers and Lead Agents:________________
Agents:_____________________________________________
Trade Date:_________________________________________
Settlement Date:____________________________________
Minimum Denominations/Increments:___________________
Other Terms:________________________________________
D-2
Part III: Form of Preliminary Pricing Supplement for Consumer Price Index Linked
Notes
D-3
This pricing supplement, which is not complete, relates to an effective
Registration Statement under the Securities Act of 1933. We may not sell the
notes until we deliver a final pricing supplement. This pricing supplement is
not an offer to sell these notes in any country or jurisdiction where such an
offer would not be permitted.
Pricing Supplement No. ___
Preliminary Pricing Supplement - Subject to Completion
(To Prospectus dated October __, 2004)
____________, 20__
[BANK OF AMERICA LOGO]
$ ___________
CONSUMER PRICE INDEX LINKED INTERNOTES(R), DUE ________ _____, 20__
- - The notes are our unsecured [senior] [subordinated] InterNotes(R).
- - Interest, to the extent payable, will accrue monthly, in arrears, and is
payable on the tenth calendar day of each month, beginning _________ 10,
20__.
- - Interest on the notes will accrue for the first interest period at the
rate of [___%] per annum. For each subsequent monthly interest period,
interest, if any, will be determined based on the Percentage Change in the
Consumer Price Index ("CPI") (as described below) over a one year period,
plus [___%] per annum. In no event will the interest rate be less than
0.00% per annum. We describe how to calculate the interest rate for each
interest period beginning on page PS-3.
- - The Percentage Change in the CPI will be determined monthly, and may be a
negative or a positive number. The interest rate will be calculated by the
calculation agent.
- - The notes are expected to be priced on ________ _____, 20__.
- - The CUSIP number for the notes is _____________.
- - The notes mature on ________ _____, 20__.
- - [The notes rank junior to our senior indebtedness from time to time
outstanding.]
- - The notes are issued in minimum denominations of $1,000 and whole
multiples of $1,000.
- - [Our senior InterNotes(R) have been rated Aa2 by Moody's Investors Service
and A+ by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.] [Our subordinated InterNotes(R) have been
rated Aa3 by Moody's Investors Service and A by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc.]
- - The notes will not be listed on any securities exchange.
Per Note Total
-------- -----
Public offering price.............. % $
Agents' gross concessions.......... %
-------- -----
Proceeds (before expenses)......... % $
Our notes are unsecured and are not savings accounts, deposits or other
obligations of a bank. Our notes are not guaranteed by Bank of America, N.A.,
Fleet National Bank or any other bank, are not insured by the Federal Deposit
Insurance Corporation or any other governmental agency and involve investment
risks. Potential purchasers of the notes should consider the information in
"Risk Factors" beginning on page PS-5.
None of the Securities and Exchange Commission, any state securities commission
or any other regulatory body has approved or disapproved of these notes or
passed upon the adequacy or accuracy of this pricing supplement or the
accompanying prospectus. Any representation to the contrary is a criminal
offense.
We will deliver the notes in book-entry only form through The Depository Trust
Company on or about __________ ____, 2004 against payment in immediately
available funds.
Joint Lead Managers and Lead Agents
BANC OF AMERICA SECURITIES LLC INCAPITAL LLC
Agents
A.G. EDWARDS
CITIGROUP CHARLES SCHWAB & CO., INC.
MERRILL LYNCH & CO. MORGAN STANLEY
UBS FINANCIAL SERVICES INC. WACHOVIA SECURITIES
TABLE OF CONTENTS
PAGE
SUMMARY..................................................... PS-3
RISK FACTORS................................................ PS-5
DESCRIPTION OF THE NOTES.................................... PS-6
THE CONSUMER PRICE INDEX.................................... PS-9
SUPPLEMENTAL PLAN OF DISTRIBUTION........................... PS-10
TAX CONSEQUENCES TO UNITED STATES HOLDERS................... PS-10
- ---------------
InterNotes(R) is a registered trademark of Incapital Holdings LLC.
PS-2
SUMMARY
This pricing supplement relates only to our notes. This summary includes
questions and answers that highlight selected information from the accompanying
prospectus and this pricing supplement to help you understand these notes. You
should read carefully the entire prospectus and pricing supplement to understand
fully the terms of the notes, as well as the tax and other considerations
important to you in making a decision about whether to invest in the notes. In
particular, you should review carefully the sections in this pricing supplement
and in the accompanying prospectus entitled "Risk Factors," which highlight a
number of risks, to determine whether an investment in the notes is appropriate
for you. If information in this pricing supplement is inconsistent with the
prospectus, this pricing supplement will supersede that document.
Certain capitalized terms used in this pricing supplement have the
meanings ascribed to them in the prospectus.
In light of the complexity of the transaction described in this pricing
supplement, you are urged to consult with your own attorneys and business and
tax advisors before making a decision to purchase any of the notes.
The information in this "Summary" section is qualified in its entirety by
the more detailed explanation set forth elsewhere in this pricing supplement and
the accompanying prospectus. You should rely only on the information contained
in this pricing supplement and the accompanying prospectus, including the
information incorporated by reference. Neither we, nor any dealers or agents,
have authorized anyone to provide you with different information. We are not
offering the notes in any jurisdiction where the offer is not permitted. You
should not assume that the information in this pricing supplement or the
accompanying prospectus is accurate at any date other than the date indicated on
the cover page of those documents.
ARE THERE ANY RISKS ASSOCIATED WITH MY INVESTMENT?
Yes, an investment in the notes is subject to risk. Please refer to the
section entitled "Risk Factors" in this pricing supplement and on page 6 of the
accompanying prospectus.
WHAT ARE THE NOTES?
The notes are senior debt securities issued by Bank of America
Corporation, and are not secured by collateral. The notes rank equally with all
of our other unsecured senior indebtedness from time to time outstanding. The
notes will mature on ___________, 20__. We cannot redeem the notes at any
earlier date[, except for the valid exercise of the Survivor's Option, as
described on page __ of the accompanying prospectus].
WHAT WILL I BE PAID ON THE NOTES AT MATURITY?
If you hold the notes until maturity, you will receive the principal
amount of the notes. You also will receive the interest payment, if any, due on
the maturity date as determined by the calculation agent, as described below.
However, if you attempt to sell the notes prior to maturity, you may find that
the market value of the notes is less than the principal amount of the notes.
PS-3
WHEN WILL INTEREST BE PAID ON THE NOTES?
Interest, to the extent payable, will be paid monthly, in arrears, on the
tenth calendar day of each month, beginning __________ 10, 20__, and on the
maturity date. We refer to these dates as "interest payment dates," and to each
monthly period that ends on the day prior to an interest payment date as an
"interest period." Each interest payment, to the extent payable, will include
any interest calculated for the period from, and including, the issue date or
last interest payment date, as the case may be, to, but excluding, the next
interest payment date. Interest will be determined on the fifth Business Day (as
defined in the prospectus) prior to the applicable interest payment date. We
refer to each of these dates as an "interest determination date."
HOW MUCH INTEREST WILL BE PAID ON EACH INTEREST PAYMENT DATE?
Interest will accrue on the notes for the first interest period at the
rate of [____%] per annum. For each subsequent monthly interest period,
interest, if any, will be determined based on the Percentage Change in the CPI
over a one-year period, plus [____%] per annum, which we refer to as the
"spread." In no event will the interest rate for any monthly interest period be
less than 0.00% per annum. See the section entitled "Description of the
Notes--Interest" for a detailed description of the calculation of the Percentage
Change in the CPI.
EXCEPT FOR THE PAYMENT OF THE PRINCIPAL AMOUNT AT MATURITY AND THE PAYMENT
OF THE FIRST INTEREST PAYMENT ON THE FIRST INTEREST PAYMENT DATE, YOU WILL BE
EXPOSED TO UNLIMITED CHANGES IN THE CONSUMER PRICE INDEX FOR ANY INTEREST PERIOD
AND, THEREFORE, YOU MAY RECEIVE NO ADDITIONAL INTEREST DURING THE TERM OF THE
NOTES.
WHAT IS THE CONSUMER PRICE INDEX AND WHAT DOES IT MEASURE?
The "Consumer Price Index" or "CPI" is used to determine the interest rate
on the notes and is the non-seasonally adjusted U.S. City Average All Items
Consumer Price Index for All Urban Consumers, as published monthly by the Bureau
of Labor Statistics of the U.S. Department of Labor, and reported on the
Bloomberg(R) service under the symbol "CPURNSA," or any successor service or at
the Bureau of Labor Statistic's website, http://www.bls.gov/cpi/. The Consumer
Price Index for a particular month is published during the following month. See
the section entitled "The Consumer Price Index."
WHAT HAVE BEEN THE LEVELS OF THE CONSUMER PRICE INDEX HISTORICALLY?
The table on page PS-10 shows the monthly levels of the Consumer Price
Index for the first _________ months of 2004, and for calendar years 2003
through 1999. However, it is not possible to predict accurately how the Consumer
Price Index or the notes will perform in the future. Past levels of the Consumer
Price Index are not necessarily indicative of future levels for any other
period.
WHO ARE THE SELLING AGENTS FOR THE NOTES?
Our affiliate, Banc of America Securities LLC ("BAS"); as well as
Incapital LLC; A.G. Edwards & Sons, Inc.; Charles Schwab & Co., Inc.; Citigroup
Global Markets Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Morgan
Stanley & Co. Incorporated; UBS Financial Services Inc. and Wachovia Capital
Markets, LLC, are acting as our agents in connection with this offering and will
receive a gross selling concession in the form of a discount based on the
non-discounted price for each note sold. In this capacity, none of the agents is
your fiduciary or advisor, and you should not rely upon any communication from
any of the agents in connection with the notes as investment advice or a
recommendation to
PS-4
purchase the notes. You should make your own investment decision regarding the
notes after consulting with your legal, tax and other advisors.
WILL THE NOTES BE LISTED ON AN EXCHANGE?
No. We do not intend to list the notes on any exchange, and a market for
the notes may never develop.
RISK FACTORS
Your investment in the notes will involve risks. This pricing supplement
and the accompanying prospectus do not describe all of those risks. Neither we
nor the agents are responsible for advising you of these risks now or as they
may change in the future.
In consultation with your own financial and legal advisors, you should
consider carefully, among other matters, the following discussion of risks and
the discussion of risks in the accompanying prospectus before deciding whether
an investment in the notes is suitable for you. The notes are not an appropriate
investment for you if you are not knowledgeable about significant features of
the notes or financial matters in general. You should not purchase the notes
unless you understand and know you can bear these investment risks.
YOU MAY RECEIVE A LOWER EFFECTIVE RATE OF INTEREST ON THE NOTES THAN YOU
WOULD ON A CONVENTIONAL FIXED-RATE OR FLOATING-RATE DEBT SECURITY OF COMPARABLE
MATURITY. The yield on your investment may be less than the overall return you
would earn if you purchased a conventional fixed-rate or floating-rate debt
security with the same maturity. The notes differ from ordinary debt securities
in that, except for the first interest period, the rate of return is not set in
the same manner as notes that bear a fixed rate of interest or notes that bear
interest at the prime rate multiplied by the principal amount. Instead, except
for the first interest period, the rate of interest payable on the notes each
month will vary depending upon the Percentage Change in the CPI over a one-year
period. The interest rate that you may receive will increase as the change in
the Consumer Price Index increases, and will decrease as the change in the
Consumer Price Index decreases.
We cannot assure you that the change in the Consumer Price Index will be
positive. If there is no change in the Consumer Price Index for the same month
in successive years, which likely is to occur when there is little or no
inflation, the Percentage Change in the CPI will be zero, and you will receive
an interest payment equal to the spread, or [____%] per annum. If the Consumer
Price Index for the same month in successive years decreases, which likely is to
occur when there is deflation, you will receive an interest payment for the
applicable interest period that is less than [____%] per annum. If the Consumer
Price Index for the same month in successive years declines by [____%] or more,
the Percentage Change in the CPI will be a negative number, and you will not
receive any interest. It is possible that your investment may not reflect the
full opportunity cost to you when you consider factors that affect the time
value of money.
The Consumer Price Index is a function of the changes in specified
consumer prices over time, which result from the interaction of many factors
over which we have no control. See the section entitled "The Consumer Price
Index." It is impossible to predict whether the level of the Consumer Price
Index will rise or fall.
THE CONSUMER PRICE INDEX AND THE MANNER IN WHICH THE BUREAU OF LABOR
STATISTICS CALCULATES THE CONSUMER PRICE INDEX MAY CHANGE IN THE FUTURE. We
cannot assure you that the Bureau of Labor Statistics will not change the
methodology by which it calculates the Consumer Price Index. For example, the
market basket of goods and services used to calculate the Consumer Price Index,
and the weights assigned to these various items, are updated
PS-5
periodically to account for changes in consumer spending patterns. Changes in
the way the Consumer Price Index is calculated could reduce the level of the
Consumer Price Index and lower the interest payments with respect to the notes.
Accordingly, the amount of interest, if any, payable on the notes, and therefore
the value of the notes, may be significantly reduced. If the Consumer Price
Index is substantially altered, a substitute index may be employed to calculate
the interest payable on the notes and that substitution may affect adversely the
value of the notes. See "Description of the Notes--Interest."
THE HISTORICAL PERFORMANCE OF THE CONSUMER PRICE INDEX IS NOT NECESSARILY
INDICATIVE OF FUTURE PERFORMANCE.
The historical performance of the Consumer Price Index is not an
indication that the level of the Consumer Price Index is more or less likely to
increase or decrease at any time during the term of the notes. The historical
Consumer Price Index levels do not give an indication of future levels of the
Consumer Price Index or a guarantee of the amount of interest you will earn.
DESCRIPTION OF THE NOTES
GENERAL
The notes are part of a series of notes issued under the [Senior]
[Subordinated] Indenture, as amended and supplemented from time to time. The
[Senior] [Subordinated] Indenture is described more fully in the accompanying
prospectus. The following description of the notes supplements the description
of the general terms and provisions of the notes set forth under the heading
"Description of Notes" in the prospectus.
The aggregate principal amount of the notes is $____________. The notes
are issued in minimum denominations of $1,000 and whole multiples of $1,000. The
notes will mature on _________ ___, 20__.
[The notes are subordinate and junior in right of payment to all of our
senior indebtedness from time to time outstanding. Payment of the principal of
and interest on the notes or our other subordinated indebtedness may not be
accelerated in the case of a default in the payment of amounts due under the
notes or a default in the terms of our other obligations under the Subordinated
Indenture. See "Description of Notes - Subordination" in the attached
prospectus.]
Prior to maturity, the notes are not redeemable by us or repayable at your
option[, except for the valid exercise of the Survivor's Option, as described in
the prospectus]. The notes are not subject to any sinking fund. Upon the
occurrence of an event of default (as defined in the Senior Indenture) under the
terms of the notes, holders may accelerate the maturity of the notes, as
described under "Description of Notes - Defaults and Rights of Acceleration" in
the prospectus.
The notes will be issued in book-entry only form.
PRINCIPAL
Principal will be paid at maturity as described in the accompanying
prospectus.
PS-6
INTEREST
Interest will accrue on the notes for the first interest period at the
rate of [____%] per annum. For each subsequent monthly interest period, interest
on the notes will be paid at a rate determined according to the Percentage
Change in the CPI over a one-year period, plus [____%] per annum. In no event
will the interest rate be less than 0.00% per annum.
Interest will be payable to the person in whose name a note is registered
at the close of business 15 calendar days prior to each interest payment date.
We refer to these dates as the "regular record dates." In addition, interest
will be payable at maturity or in connection with the exercise of the Survivor's
Option to the holder of the note at the close of business on the maturity date
or the applicable interest payment date, respectively.
The calculation agent will determine any amount of interest for each
$1,000 principal amount of the notes due on any interest payment date. Interest
on the notes will be computed and paid on the basis of a 360-day year consisting
of twelve 30-day months.
Subsequent to the first interest payment date, the calculation agent will
determine the interest rate applicable for the interest period on each interest
determination date, which is the fifth Business Day prior to an interest payment
date. The interest per $1,000 principal amount of the notes for a given interest
period will be rounded to the nearest penny and will be determined by the
following formula:
[Percentage Change in the CPI + ___%] x $1,000 x [30/360]
where the "Percentage Change in the CPI" for any interest period means a number,
rounded to the nearest ten-thousandth and then expressed as a percentage, equal
to:
(Ref CPI(n)/Ref CPI(n-12)-1)
In the equation above:
(a) Ref CPI(n) for any calendar month means the Consumer Price Index for
the third preceding calendar month. For example, the Ref CPI(n) applicable to a
June 10 interest payment date is the Consumer Price Index for March of the same
year, which is reported by the Bureau of Labor Statistics in April of that year;
and
(b) Ref CPI(n-12) for any calendar month means the Consumer Price Index
for the calendar month fifteen months prior to the current interest payment
date. In the example above, Ref CPI(n-12) would be the Consumer Price Index for
March in the preceding year, as published by the Bureau of Labor Statistics in
April of the preceding year.
The result will be rounded to the nearest ten-thousandth of a decimal
place and then expressed as a percentage.
This calculation of the interest payments on the notes incorporates a lag
of approximately three months as to the Consumer Price Index, which may have an
impact on the trading prices of these notes, particularly during periods of
significant and rapid changes in the Consumer Price Index.
PS-7
Example. Assuming that the Consumer Price Index for March 2003 and March
2004 are 184.2 and 187.4, respectively, a hypothetical principal amount of
$1,000 and a hypothetical spread of 2.00%, the Percentage Change in the CPI and
the interest payment for June 10, 2004 would be calculated as follows:
[Percentage Change in CPI = [187.4/184.2-1] = 1.74%
Interest payable = [1.74% + 2.00%] x $1,000 x [30/360] = $3.12
DISCONTINUANCE OF THE CONSUMER PRICE INDEX; ALTERATION OF METHOD OF CALCULATION
If the Bureau of Labor Statistics revises the Consumer Price Index for a
particular month, the Consumer Price Index for the previously reported month
will continue to be used to calculate interest payments on the notes.
If the Consumer Price Index is (1) discontinued, (2) in the judgment of
the Secretary of the United States Treasury, fundamentally altered in a manner
which is materially adverse to the interests of investors in U.S. Treasury
Inflation-Linked Treasury Notes, as described in 61 Federal Register 50924-01,
the "Reference Treasury Securities" or (3) in the judgment of the Secretary of
the United States Treasury, altered by legislation or executive order of the
President of the United States in a manner which is materially adverse to the
interests of investors in the Reference Treasury Securities, the United States
Treasury has indicated in its Appendix B to 31 Code of Federal Regulations Part
356 that, after consulting with the Bureau of Labor Statistics, or any successor
agency, it will substitute an appropriate alternate index for the Consumer Price
Index for the Reference Treasury Securities. In that event, the alternate index
selected by the United States Treasury will replace the Consumer Price Index
going forward and the index as so calculated and published by the United States
Treasury or other applicable agency will be deemed to be a "Substitute Index."
The United States Treasury has indicated that a change to the Consumer
Price Index would be considered fundamental if it affected the character of the
Consumer Price Index. Technical changes made by the Bureau of Labor Statistics
to the Consumer Price Index to improve its accuracy as a measure of the cost of
living would not be considered fundamental changes. Technical changes include,
but are not limited to, changes in: (1) the specific items (e.g., apples or
major appliances) to be priced for the Consumer Price Index, (2) the way
individual price quotations are aggregated to construct component price indices
for these items (aggregation of item sub-strata), (3) the method for combining
these component price indices to obtain the comprehensive, all-terms Consumer
Price Index (aggregation of item strata) and (4) the procedures for
incorporating new goods into the index and making adjustments for quality
changes in existing goods. Technical changes to the Consumer Price Index
previously made or announced by the Bureau of Labor Statistics include
introducing probability sampling to select the precise items for which prices
are collected and the stores in which collection takes place, and changing the
way in which price movements of major components, such as shelter costs for
homeowners in the early 1980s and medical care costs beginning in 1997, are
measured.
If (1) the Consumer Price Index for a particular month is not reported,
(2) the Consumer Price Index for the base reference period is no longer
published or (3) the United States Treasury has failed to substitute an
appropriate alternate index for the Consumer Price Index in the circumstances
contemplated in the preceding paragraph, in each case, as of the interest
PS-8
determination date preceding an interest payment date, the Consumer Price Index
(or Substitute Index) for that interest payment date shall be the Consumer Price
Index (or Substitute Index) in effect on the interest payment date last
preceding the current interest payment date.
ROLE OF THE CALCULATION AGENT
The calculation agent has the sole discretion to make all determinations
regarding the calculation of interest. Absent manifest error, all determinations
of the calculation agent will be final and binding on you and us, without any
liability on the part of the calculation agent.
We have initially appointed The Bank of New York as the calculation agent,
but we may change the calculation agent at any time without notifying you.
THE CONSUMER PRICE INDEX
We have obtained all information regarding the Consumer Price Index
contained in this pricing supplement from publicly available information. That
information reflects the policies of, and is subject to change by, the Bureau
Labor Statistics or the United States Treasury. The Bureau of Labor Statistics
has no obligation to continue to publish, and may discontinue publication of,
the Consumer Price Index. The consequences of the Bureau of Labor Statistics'
discontinuing publication of the Consumer Price Index are described in the
section entitled "Description of the Notes--Discontinuance of Consumer Price
Index; Alteration of Method of Calculation." We do not assume any responsibility
for the accuracy or completeness of any information relating to the Consumer
Price Index.
The Consumer Price Index is a measure of the average change over time in
the prices paid by urban consumers for a market basket of consumer goods and
services. The Consumer Price Index is a widely used measure of inflation in the
United States.
The Consumer Price Index reflects the spending patterns of about 87% of
the total United States population. It includes expenditures by urban wage
earners and clerical workers, professional, managerial and technical workers,
the self-employed, short-term workers, the unemployed, retirees and others not
in the labor force. Not included in the Consumer Price Index are the spending
patterns of persons living in rural nonmetropolitan areas, farm families,
persons in the Armed Forces and those in institutions, such as prisons and
mental hospitals.
The Consumer Price Index does not include investment items, such as
stocks, bonds, real estate and life insurance.
The Consumer Price Index is expressed in relative terms in relation to a
time base reference period for which the level is set at 100.00. The base
reference period, or standard against which to measure changes, is the 1982-1984
average.
Neither we nor any of our affiliates, including the agents, accepts any
responsibility for the calculation, maintenance or publication of, or for any
error, omission or disruption in, the Consumer Price Index or any successor to
the Consumer Price Index.
The table below sets forth the levels for each month of the Consumer Price
Index for the first ________ months of 2004, and for calendar years 2003, 2002,
2001, 2000 and 1999. The levels listed in the table below were obtained from the
Bureau of Labor Statistics, without independent verification.
PS-9
CONSUMER PRICE INDEX MONTHLY CLOSING LEVELS
2004 2003 2002 2001 2000 1999
----- ----- ----- ----- ----- -----
January 185.2 181.7 177.1 175.1 168.8 164.3
February 186.2 183.1 177.8 175.8 169.8 164.5
March 187.4 184.2 178.8 176.2 171.2 165.0
April 188.0 183.8 179.8 176.9 171.3 166.2
May 189.1 183.5 179.8 177.7 171.5 166.2
June 189.7 183.7 179.9 178.0 172.4 166.2
July 189.4 183.9 180.1 177.5 172.8 166.7
August 189.5 184.6 180.7 177.5 172.8 167.1
September 185.2 181.0 178.3 173.7 167.9
October 185.0 181.3 177.7 174.0 168.2
November 184.5 181.3 177.4 174.1 168.3
December 184.3 180.9 176.7 174.0 168.3
Before investing in the notes, you should consult publicly available
sources for the levels of the Consumer Price Index. The generally unsettled
international environment and related uncertainties, including the risk of
terrorism, may result in financial markets, economic uncertainty generally, and
the Consumer Price Index exhibiting greater volatility than in earlier periods.
SUPPLEMENTAL PLAN OF DISTRIBUTION
Under the terms of an Amended and Restated Selling Agent Agreement dated
as of October __, 2004, the notes are offered by Incapital LLC, which we refer
to as the Purchasing Agent, for subsequent resale to the agents and other
dealers. The agents, including the Purchasing Agent, are parties to that
agreement. The agents have agreed to use their reasonable best efforts to
solicit offers from investors to purchase the notes.
We will pay the Purchasing Agent a gross selling concession to be divided
among the Purchasing Agent and the other agents as they agree. The concession is
payable to the Purchasing Agent in the form of a discount equal to __% of the
non-discounted price for each note sold.
This pricing supplement and the accompanying prospectus may be used by one
or more of our affiliated entities, including BAS and Incapital LLC, in
connection with offers and sales related to secondary market transactions in the
notes to the extent permitted by applicable law.
See "Plan of Distribution" on page 36 of the accompanying prospectus.
TAX CONSEQUENCES TO UNITED STATES HOLDERS
For a general summary of the principal United States federal income and
estate tax consequences of the ownership and disposition of the notes, please
see the section of the accompanying prospectus, "Tax Consequences to United
States Holders."
PS-10
Part IV: Form of Final Pricing Supplement for Consumer Price Index Linked Notes
D-4
Pricing Supplement No. ___
(To Prospectus dated October __, 2004)
___________, 20__
[BANK OF AMERICA LOGO]
$_____________
CONSUMER PRICE INDEX LINKED INTERNOTES(R), DUE ________ ____, 20__
- - The notes are our unsecured [senior] [subordinated] InterNotes(R).
- - Interest, to the extent payable, will accrue monthly, in arrears, and is
payable on the tenth calendar day of each month, beginning _________ 10,
20__.
- - Interest on the notes will accrue for the first interest period at the
rate of [___%] per annum. For each subsequent monthly interest period,
interest, if any, will be determined based on the Percentage Change in the
Consumer Price Index ("CPI") (as described below) over a one year period,
plus [___%] per annum. In no event will the interest rate be less than
0.00% per annum. We describe how to calculate the interest rate for each
interest period beginning on page PS-3.
- - The Percentage Change in the CPI will be determined monthly, and may be a
negative or a positive number. The interest rate will be calculated by the
calculation agent.
- - The notes were priced on _______ ____, 20__.
- - The CUSIP number for the notes is _______________.
- - The notes mature on ___________, 20__.
- - [The notes rank junior to our senior indebtedness from time to time
outstanding.]
- - The notes are issued in minimum denominations of $1,000 and whole
multiples of $1,000.
- - [Our senior InterNotes(R) have been rated Aa2 by Moody's Investors Service
and A+ by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.] [Our subordinated InterNotes(R) have been
rated Aa3 by Moody's Investors Service and A by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc.]
- - The notes will not be listed on any securities exchange.
Per Note Total
-------- -----
Public offering price................. % $
Agents' gross concessions............. %
-------- -----
Proceeds (before expenses)............ % $
Our notes are unsecured and are not savings accounts, deposits or other
obligations of a bank. Our notes are not guaranteed by Bank of America, N.A.,
Fleet National Bank or any other bank, are not insured by the Federal Deposit
Insurance Corporation or any other governmental agency and involve investment
risks. Potential purchasers of the notes should consider the information in
"Risk Factors" beginning on page PS-5.
None of the Securities and Exchange Commission, any state securities commission
or any other regulatory body has approved or disapproved of these notes or
passed upon the adequacy or accuracy of this pricing supplement or the
accompanying prospectus. Any representation to the contrary is a criminal
offense.
We will deliver the notes in book-entry only form through The Depository Trust
Company on or about ______________, 2004 against payment in immediately
available funds.
Joint Lead Managers and Lead Agents
BANC OF AMERICA SECURITIES LLC INCAPITAL LLC
Agents
A.G. EDWARDS
CITIGROUP CHARLES SCHWAB & CO., INC.
MERRILL LYNCH & CO. MORGAN STANLEY
UBS FINANCIAL SERVICES INC. WACHOVIA SECURITIES
TABLE OF CONTENTS
PAGE
SUMMARY............................................................. PS-3
RISK FACTORS........................................................ PS-5
DESCRIPTION OF THE NOTES............................................ PS-6
THE CONSUMER PRICE INDEX............................................ PS-9
SUPPLEMENTAL PLAN OF DISTRIBUTION................................... PS-10
TAX CONSEQUENCES TO UNITED STATES HOLDERS........................... PS-10
- ---------------
InterNotes(R) is a registered trademark of Incapital Holdings LLC.
PS-2
SUMMARY
This pricing supplement relates only to our notes. This summary includes
questions and answers that highlight selected information from the accompanying
prospectus and this pricing supplement to help you understand these notes. You
should read carefully the entire prospectus and pricing supplement to understand
fully the terms of the notes, as well as the tax and other considerations
important to you in making a decision about whether to invest in the notes. In
particular, you should review carefully the sections in this pricing supplement
and in the accompanying prospectus entitled "Risk Factors," which highlight a
number of risks, to determine whether an investment in the notes is appropriate
for you. If information in this pricing supplement is inconsistent with the
prospectus, this pricing supplement will supersede that document.
Certain capitalized terms used in this pricing supplement have the
meanings ascribed to them in the prospectus.
In light of the complexity of the transaction described in this pricing
supplement, you are urged to consult with your own attorneys and business and
tax advisors before making a decision to purchase any of the notes.
The information in this "Summary" section is qualified in its entirety by
the more detailed explanation set forth elsewhere in this pricing supplement and
the accompanying prospectus. You should rely only on the information contained
in this pricing supplement and the accompanying prospectus, including the
information incorporated by reference. Neither we, nor any dealers or agents,
have authorized anyone to provide you with different information. We are not
offering the notes in any jurisdiction where the offer is not permitted. You
should not assume that the information in this pricing supplement or the
accompanying prospectus is accurate at any date other than the date indicated on
the cover page of those documents.
ARE THERE ANY RISKS ASSOCIATED WITH MY INVESTMENT?
Yes, an investment in the notes is subject to risk. Please refer to the
section entitled "Risk Factors" in this pricing supplement and on page 6 of the
accompanying prospectus.
WHAT ARE THE NOTES?
The notes are senior debt securities issued by Bank of America
Corporation, and are not secured by collateral. The notes rank equally with all
of our other unsecured senior indebtedness from time to time outstanding. The
notes will mature on ___________, 20__. We cannot redeem the notes at any
earlier date[, except for the valid exercise of the Survivor's Option, as
described on page __ of the accompanying prospectus].
WHAT WILL I BE PAID ON THE NOTES AT MATURITY?
If you hold the notes until maturity, you will receive the principal
amount of the notes. You also will receive the interest payment, if any, due on
the maturity date as determined by the calculation agent, as described below.
However, if you attempt to sell the notes prior to maturity, you may find that
the market value of the notes is less than the principal amount of the notes.
PS-3
WHEN WILL INTEREST BE PAID ON THE NOTES?
Interest, to the extent payable, will be paid monthly, in arrears, on the
tenth calendar day of each month, beginning __________ 10, 20__, and on the
maturity date. We refer to these dates as "interest payment dates," and to each
monthly period that ends on the day prior to an interest payment date as an
"interest period." Each interest payment, to the extent payable, will include
any interest calculated for the period from, and including, the issue date or
last interest payment date, as the case may be, to, but excluding, the next
interest payment date. Interest will be determined on the fifth Business Day (as
defined in the prospectus) prior to the applicable interest payment date. We
refer to each of these dates as an "interest determination date."
HOW MUCH INTEREST WILL BE PAID ON EACH INTEREST PAYMENT DATE?
Interest will accrue on the notes for the first interest period at the
rate of [____%] per annum. For each subsequent monthly interest period,
interest, if any, will be determined based on the Percentage Change in the CPI
over a one-year period, plus [____%] per annum, which we refer to as the
"spread." In no event will the interest rate for any monthly interest period be
less than 0.00% per annum. See the section entitled "Description of the
Notes--Interest" for a detailed description of the calculation of the Percentage
Change in the CPI.
EXCEPT FOR THE PAYMENT OF THE PRINCIPAL AMOUNT AT MATURITY AND THE PAYMENT
OF THE FIRST INTEREST PAYMENT ON THE FIRST INTEREST PAYMENT DATE, YOU WILL BE
EXPOSED TO UNLIMITED CHANGES IN THE CONSUMER PRICE INDEX FOR ANY INTEREST PERIOD
AND, THEREFORE, YOU MAY RECEIVE NO ADDITIONAL INTEREST DURING THE TERM OF THE
NOTES.
WHAT IS THE CONSUMER PRICE INDEX AND WHAT DOES IT MEASURE?
The "Consumer Price Index" or "CPI" is used to determine the interest rate
on the notes and is the non-seasonally adjusted U.S. City Average All Items
Consumer Price Index for All Urban Consumers, as published monthly by the Bureau
of Labor Statistics of the U.S. Department of Labor, and reported on the
Bloomberg(R) service under the symbol "CPURNSA," or any successor service or at
the Bureau of Labor Statistic's website, http://www.bls.gov/cpi/. The Consumer
Price Index for a particular month is published during the following month. See
the section entitled "The Consumer Price Index."
WHAT HAVE BEEN THE LEVELS OF THE CONSUMER PRICE INDEX HISTORICALLY?
The table on page PS-10 shows the monthly levels of the Consumer Price
Index for the first _________ months of 2004, and for calendar years 2003
through 1999. However, it is not possible to predict accurately how the Consumer
Price Index or the notes will perform in the future. Past levels of the Consumer
Price Index are not necessarily indicative of future levels for any other
period.
WHO ARE THE SELLING AGENTS FOR THE NOTES?
Our affiliate, Banc of America Securities LLC ("BAS"); as well as
Incapital LLC; A.G. Edwards & Sons, Inc.; Charles Schwab & Co., Inc.; Citigroup
Global Markets Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Morgan
Stanley & Co. Incorporated; UBS Financial Services Inc. and Wachovia Capital
Markets, LLC, are acting as our agents in connection with this offering and will
receive a gross selling concession in the form of a discount based on the
non-discounted price for each note sold. In this capacity, none of the agents is
your fiduciary or advisor, and you should not rely upon any communication from
any of the agents in connection with the notes as investment advice or a
recommendation to
PS-4
purchase the notes. You should make your own investment decision regarding the
notes after consulting with your legal, tax and other advisors.
WILL THE NOTES BE LISTED ON AN EXCHANGE?
No. We do not intend to list the notes on any exchange, and a market for
the notes may never develop.
RISK FACTORS
Your investment in the notes will involve risks. This pricing supplement
and the accompanying prospectus do not describe all of those risks. Neither we
nor the agents are responsible for advising you of these risks now or as they
may change in the future.
In consultation with your own financial and legal advisors, you should
consider carefully, among other matters, the following discussion of risks and
the discussion of risks in the accompanying prospectus before deciding whether
an investment in the notes is suitable for you. The notes are not an appropriate
investment for you if you are not knowledgeable about significant features of
the notes or financial matters in general. You should not purchase the notes
unless you understand and know you can bear these investment risks.
YOU MAY RECEIVE A LOWER EFFECTIVE RATE OF INTEREST ON THE NOTES THAN YOU
WOULD ON A CONVENTIONAL FIXED-RATE OR FLOATING-RATE DEBT SECURITY OF COMPARABLE
MATURITY. The yield on your investment may be less than the overall return you
would earn if you purchased a conventional fixed-rate or floating-rate debt
security with the same maturity. The notes differ from ordinary debt securities
in that, except for the first interest period, the rate of return is not set in
the same manner as notes that bear a fixed rate of interest or notes that bear
interest at the prime rate multiplied by the principal amount. Instead, except
for the first interest period, the rate of interest payable on the notes each
month will vary depending upon the Percentage Change in the CPI over a one-year
period. The interest rate that you may receive will increase as the change in
the Consumer Price Index increases, and will decrease as the change in the
Consumer Price Index decreases.
We cannot assure you that the change in the Consumer Price Index will be
positive. If there is no change in the Consumer Price Index for the same month
in successive years, which likely is to occur when there is little or no
inflation, the Percentage Change in the CPI will be zero, and you will receive
an interest payment equal to the spread, or [____%] per annum. If the Consumer
Price Index for the same month in successive years decreases, which likely is to
occur when there is deflation, you will receive an interest payment for the
applicable interest period that is less than [____%] per annum. If the Consumer
Price Index for the same month in successive years declines by [____%] or more,
the Percentage Change in the CPI will be a negative number, and you will not
receive any interest. It is possible that your investment may not reflect the
full opportunity cost to you when you consider factors that affect the time
value of money.
The Consumer Price Index is a function of the changes in specified
consumer prices over time, which result from the interaction of many factors
over which we have no control. See the section entitled "The Consumer Price
Index." It is impossible to predict whether the level of the Consumer Price
Index will rise or fall.
THE CONSUMER PRICE INDEX AND THE MANNER IN WHICH THE BUREAU OF LABOR
STATISTICS CALCULATES THE CONSUMER PRICE INDEX MAY CHANGE IN THE FUTURE. We
cannot assure you that the Bureau of Labor Statistics will not change the
methodology by which it calculates the Consumer Price Index. For example, the
market basket of goods and services used to calculate the Consumer Price Index,
and the weights assigned to these various items, are updated
PS-5
periodically to account for changes in consumer spending patterns. Changes in
the way the Consumer Price Index is calculated could reduce the level of the
Consumer Price Index and lower the interest payments with respect to the notes.
Accordingly, the amount of interest, if any, payable on the notes, and therefore
the value of the notes, may be significantly reduced. If the Consumer Price
Index is substantially altered, a substitute index may be employed to calculate
the interest payable on the notes and that substitution may affect adversely the
value of the notes. See "Description of the Notes--Interest."
THE HISTORICAL PERFORMANCE OF THE CONSUMER PRICE INDEX IS NOT NECESSARILY
INDICATIVE OF FUTURE PERFORMANCE.
The historical performance of the Consumer Price Index is not an
indication that the level of the Consumer Price Index is more or less likely to
increase or decrease at any time during the term of the notes. The historical
Consumer Price Index levels do not give an indication of future levels of the
Consumer Price Index or a guarantee of the amount of interest you will earn.
DESCRIPTION OF THE NOTES
GENERAL
The notes are part of a series of notes issued under the [Senior]
[Subordinated] Indenture, as amended and supplemented from time to time. The
[Senior] [Subordinated] Indenture is described more fully in the accompanying
prospectus. The following description of the notes supplements the description
of the general terms and provisions of the notes set forth under the heading
"Description of Notes" in the prospectus.
The aggregate principal amount of the notes is $____________. The notes
are issued in minimum denominations of $1,000 and whole multiples of $1,000. The
notes will mature on ____________, 20__.
[The notes are subordinate and junior in right of payment to all of our
senior indebtedness from time to time outstanding. Payment of the principal of
and interest on the notes or our other subordinated indebtedness may not be
accelerated in the case of a default in the payment of amounts due under the
notes or a default in the terms of our other obligations under the Subordinated
Indenture. See "Description of Notes - Subordination" in the attached
prospectus.]
Prior to maturity, the notes are not redeemable by us or repayable at your
option[, except for the valid exercise of the Survivor's Option, as described in
the prospectus]. The notes are not subject to any sinking fund. Upon the
occurrence of an event of default (as defined in the Senior Indenture) under the
terms of the notes, holders may accelerate the maturity of the notes, as
described under "Description of Notes - Defaults and Rights of Acceleration" in
the prospectus.
The notes will be issued in book-entry only form.
PRINCIPAL
Principal will be paid at maturity as described in the accompanying
prospectus.
PS-6
INTEREST
Interest will accrue on the notes for the first interest period at the
rate of [____%] per annum. For each subsequent monthly interest period, interest
on the notes will be paid at a rate determined according to the Percentage
Change in the CPI over a one-year period, plus [____%] per annum. In no event
will the interest rate be less than 0.00% per annum.
Interest will be payable to the person in whose name a note is registered
at the close of business 15 calendar days prior to each interest payment date.
We refer to these dates as the "regular record dates." In addition, interest
will be payable at maturity or in connection with the exercise of the Survivor's
Option to the holder of the note at the close of business on the maturity date
or the applicable interest payment date, respectively.
The calculation agent will determine any amount of interest for each
$1,000 principal amount of the notes due on any interest payment date. Interest
on the notes will be computed and paid on the basis of a 360-day year consisting
of twelve 30-day months.
Subsequent to the first interest payment date, the calculation agent will
determine the interest rate applicable for the interest period on each interest
determination date, which is the fifth Business Day prior to an interest payment
date. The interest per $1,000 principal amount of the notes for a given interest
period will be rounded to the nearest penny and will be determined by the
following formula:
[Percentage Change in the CPI + ___%] x $1,000 x [30/360]
where the "Percentage Change in the CPI" for any interest period means a number,
rounded to the nearest ten-thousandth and then expressed as a percentage, equal
to:
(Ref CPI(n)/Ref CPI(n-2) - 1)
In the equation above:
(a) Ref CPI(n) for any calendar month means the Consumer Price Index for
the third preceding calendar month. For example, the Ref CPI(n) applicable to a
June 10 interest payment date is the Consumer Price Index for March of the same
year, which is reported by the Bureau of Labor Statistics in April of that year;
and
(b) Ref CPI(n-12) for any calendar month means the Consumer Price Index
for the calendar month fifteen months prior to the current interest payment
date. In the example above, Ref CPI(n-12) would be the Consumer Price Index for
March in the preceding year, as published by the Bureau of Labor Statistics in
April of the preceding year.
The result will be rounded to the nearest ten-thousandth of a decimal
place and then expressed as a percentage.
This calculation of the interest payments on the notes incorporates a lag
of approximately three months as to the Consumer Price Index, which may have an
impact on the trading prices of these notes, particularly during periods of
significant and rapid changes in the Consumer Price Index.
PS-7
Example. Assuming that the Consumer Price Index for March 2003 and March
2004 are 184.2 and 187.4, respectively, a hypothetical principal amount of
$1,000 and a hypothetical spread of 2.00%, the Percentage Change in the CPI and
the interest payment for June 10, 2004 would be calculated as follows:
[Percentage Change in CPI = (187.4/184.2-1) = 1.74%
Interest payable = [1.74% + 2.00%] x $1,000 x [30/360] = $3.12
DISCONTINUANCE OF THE CONSUMER PRICE INDEX; ALTERATION OF METHOD OF CALCULATION
If the Bureau of Labor Statistics revises the Consumer Price Index for a
particular month, the Consumer Price Index for the previously reported month
will continue to be used to calculate interest payments on the notes.
If the Consumer Price Index is (1) discontinued, (2) in the judgment of
the Secretary of the United States Treasury, fundamentally altered in a manner
which is materially adverse to the interests of investors in U.S. Treasury
Inflation-Linked Treasury Notes, as described in 61 Federal Register 50924-01,
the "Reference Treasury Securities" or (3) in the judgment of the Secretary of
the United States Treasury, altered by legislation or executive order of the
President of the United States in a manner which is materially adverse to the
interests of investors in the Reference Treasury Securities, the United States
Treasury has indicated in its Appendix B to 31 Code of Federal Regulations Part
356 that, after consulting with the Bureau of Labor Statistics, or any successor
agency, it will substitute an appropriate alternate index for the Consumer Price
Index for the Reference Treasury Securities. In that event, the alternate index
selected by the United States Treasury will replace the Consumer Price Index
going forward and the index as so calculated and published by the United States
Treasury or other applicable agency will be deemed to be a "Substitute Index."
The United States Treasury has indicated that a change to the Consumer
Price Index would be considered fundamental if it affected the character of the
Consumer Price Index. Technical changes made by the Bureau of Labor Statistics
to the Consumer Price Index to improve its accuracy as a measure of the cost of
living would not be considered fundamental changes. Technical changes include,
but are not limited to, changes in: (1) the specific items (e.g., apples or
major appliances) to be priced for the Consumer Price Index, (2) the way
individual price quotations are aggregated to construct component price indices
for these items (aggregation of item sub-strata), (3) the method for combining
these component price indices to obtain the comprehensive, all-terms Consumer
Price Index (aggregation of item strata) and (4) the procedures for
incorporating new goods into the index and making adjustments for quality
changes in existing goods. Technical changes to the Consumer Price Index
previously made or announced by the Bureau of Labor Statistics include
introducing probability sampling to select the precise items for which prices
are collected and the stores in which collection takes place, and changing the
way in which price movements of major components, such as shelter costs for
homeowners in the early 1980s and medical care costs beginning in 1997, are
measured.
If (1) the Consumer Price Index for a particular month is not reported,
(2) the Consumer Price Index for the base reference period is no longer
published or (3) the United States Treasury has failed to substitute an
appropriate alternate index for the Consumer Price Index in the circumstances
contemplated in the preceding paragraph, in each case, as of the interest
PS-8
determination date preceding an interest payment date, the Consumer Price Index
(or Substitute Index) for that interest payment date shall be the Consumer Price
Index (or Substitute Index) in effect on the interest payment date last
preceding the current interest payment date.
ROLE OF THE CALCULATION AGENT
The calculation agent has the sole discretion to make all determinations
regarding the calculation of interest. Absent manifest error, all determinations
of the calculation agent will be final and binding on you and us, without any
liability on the part of the calculation agent.
We have initially appointed The Bank of New York as the calculation agent,
but we may change the calculation agent at any time without notifying you.
THE CONSUMER PRICE INDEX
We have obtained all information regarding the Consumer Price Index
contained in this pricing supplement from publicly available information. That
information reflects the policies of, and is subject to change by, the Bureau
Labor Statistics or the United States Treasury. The Bureau of Labor Statistics
has no obligation to continue to publish, and may discontinue publication of,
the Consumer Price Index. The consequences of the Bureau of Labor Statistics'
discontinuing publication of the Consumer Price Index are described in the
section entitled "Description of the Notes--Discontinuance of Consumer Price
Index; Alteration of Method of Calculation." We do not assume any responsibility
for the accuracy or completeness of any information relating to the Consumer
Price Index.
The Consumer Price Index is a measure of the average change over time in
the prices paid by urban consumers for a market basket of consumer goods and
services. The Consumer Price Index is a widely used measure of inflation in the
United States.
The Consumer Price Index reflects the spending patterns of about 87% of
the total United States population. It includes expenditures by urban wage
earners and clerical workers, professional, managerial and technical workers,
the self-employed, short-term workers, the unemployed, retirees and others not
in the labor force. Not included in the Consumer Price Index are the spending
patterns of persons living in rural nonmetropolitan areas, farm families,
persons in the Armed Forces and those in institutions, such as prisons and
mental hospitals.
The Consumer Price Index does not include investment items, such as
stocks, bonds, real estate and life insurance.
The Consumer Price Index is expressed in relative terms in relation to a
time base reference period for which the level is set at 100.00. The base
reference period, or standard against which to measure changes, is the 1982-1984
average.
Neither we nor any of our affiliates, including the agents, accepts any
responsibility for the calculation, maintenance or publication of, or for any
error, omission or disruption in, the Consumer Price Index or any successor to
the Consumer Price Index.
The table below sets forth the levels for each month of the Consumer Price
Index for the first ________ months of 2004, and for calendar years 2003, 2002,
2001, 2000 and 1999. The levels listed in the table below were obtained from the
Bureau of Labor Statistics, without independent verification.
PS-9
CONSUMER PRICE INDEX MONTHLY CLOSING LEVELS
2004 2003 2002 2001 2000 1999
----- ----- ----- ----- ----- -----
January 185.2 181.7 177.1 175.1 168.8 164.3
February 186.2 183.1 177.8 175.8 169.8 164.5
March 187.4 184.2 178.8 176.2 171.2 165.0
April 188.0 183.8 179.8 176.9 171.3 166.2
May 189.1 183.5 179.8 177.7 171.5 166.2
June 189.7 183.7 179.9 178.0 172.4 166.2
July 189.4 183.9 180.1 177.5 172.8 166.7
August 189.5 184.6 180.7 177.5 172.8 167.1
September 185.2 181.0 178.3 173.7 167.9
October 185.0 181.3 177.7 174.0 168.2
November 184.5 181.3 177.4 174.1 168.3
December 184.3 180.9 176.7 174.0 168.3
Before investing in the notes, you should consult publicly available
sources for the levels of the Consumer Price Index. The generally unsettled
international environment and related uncertainties, including the risk of
terrorism, may result in financial markets, economic uncertainty generally, and
the Consumer Price Index exhibiting greater volatility than in earlier periods.
SUPPLEMENTAL PLAN OF DISTRIBUTION
Under the terms of an Amended and Restated Selling Agent Agreement dated
as of October __, 2004, the notes are offered by Incapital LLC, which we refer
to as the Purchasing Agent, for subsequent resale to the agents and other
dealers. The agents, including the Purchasing Agent, are parties to that
agreement. The agents have agreed to use their reasonable best efforts to
solicit offers from investors to purchase the notes.
We will pay the Purchasing Agent a gross selling concession to be divided
among the Purchasing Agent and the other agents as they agree. The concession is
payable to the Purchasing Agent in the form of a discount equal to __% of the
non-discounted price for each note sold.
This pricing supplement and the accompanying prospectus may be used by one
or more of our affiliated entities, including BAS and Incapital LLC, in
connection with offers and sales related to secondary market transactions in the
notes to the extent permitted by applicable law.
See "Plan of Distribution" on page 36 of the accompanying prospectus.
TAX CONSEQUENCES TO UNITED STATES HOLDERS
For a general summary of the principal United States federal income and
estate tax consequences of the ownership and disposition of the notes, please
see the section of the accompanying prospectus, "Tax Consequences to United
States Holders."
PS-10
EXHIBIT E
Master Selected Dealer Agreement
Dear :
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 Pershing,
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 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, Illinois 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
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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 Pershing, LLC clearing for the account of Incapital
LLC, against delivery of the Securities. If Securities are purchased and paid
for at such Public Offering Price, such Concession will be paid after the
termination of the provisions of Section 3(c) hereof with respect to such
Securities. Notwithstanding the foregoing, unless notified otherwise by us,
payment for and delivery of Securities purchased by you shall be made through
the facilities of The Depository Trust Company, if you are a member, unless you
have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may be made
through a correspondent who is a member pursuant to instructions which you will
send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities that
are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply therewith. You
agree to make a record of your distribution of each preliminary prospectus and,
when furnished with copies of any revised preliminary prospectus, you will, upon
our request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any Offering
of Securities, other than a Registered Offering, which is made pursuant to an
offering circular or other document comparable to a prospectus in a Registered
Offering, we shall provide you with such number of copies of each preliminary
offering circular and of the final offering circular relating thereto as you may
reasonably request. You agree that you will comply with the applicable Federal
and state laws, and the applicable rules and regulations of any regulatory body
promulgated thereunder, governing the use and distribution of offering circulars
by brokers or dealers. You 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
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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 Rule 2740 of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD") and who are either members
in good standing of the NASD or foreign banks, dealers or institutions not
eligible for membership in the NASD who represent to you that they will promptly
reoffer such Securities at the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and institutions set forth in
Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's 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
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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 Rule 2740 of the Conduct Rules of the
NASD 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 Rules 2730 and 2750 thereof and (b) with Rule 2420 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 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.
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(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.
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
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case of any Offering described in Section 3(a) and 3(b) hereof, acknowledgment
that you have requested and 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,
By: ____________________________
Phillip E. Johnson
Chief Operating Officer
CONFIRMED: ______________________, 20___
COMPANY NAME
By: ____________________________________
Name: __________________________________
(Print name)
Title: _________________________________
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