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EXHIBIT 1.1
SELLING AGENT AGREEMENT
by and among
Bank of America Corporation
and the
Agents named herein
January __, 2001
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January ___, 2001
To the Agents listed on
the signature page hereto.
Bank of America Corporation, a Delaware corporation (the
"Company") proposes to issue and sell up to $3,000,000,000 aggregate principal
amount of its Bank of America Corporation InterNotes(SM) due nine months or more
from date of issue (the "Notes"). The Notes may be Senior Notes or Subordinated
Notes. The Senior Notes are to be issued pursuant to a restated indenture dated
as of January 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 a restated indenture dated as of January 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.
Subject to the terms and conditions contained in this Selling
Agent Agreement (the "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, 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. 333-47222 relating to the
Notes and the offering thereof, from time to time, in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the SEC, and the Indentures have been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the 1933 Act, including all documents incorporated therein by
reference, as from time to time amended or supplemented, including any Pricing
Supplement (as defined herein), are referred to herein as the "Registration
Statement" and the "Prospectus," respectively.
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II.
The Agents obligations hereunder are subject to the following
conditions:
(a) On the date hereof, the Agents shall have received the following
legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) The opinion of Smith Helms Mulliss & Moore, L.L.P.,
counsel to the Company, to the effect of paragraphs (i) and (iv)
through (x) below, and the opinion of Paul J. Polking, Executive Vice
President and General Counsel to the Company (or any deputy or
associate general counsel to the Company), to the effect of paragraphs
(ii) and (iii) below:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to
own its properties and conduct its business as described in
the Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; Bank of America, N. A. (the "Principal Subsidiary
Bank") is a national banking association formed under the laws
of the United States and authorized thereunder to transact
business;
(ii) Each of the Company and the Principal Subsidiary
Bank is qualified or licensed to do business as a foreign
corporation in any jurisdiction in which such counsel has
knowledge that the Company or the Principal Subsidiary, as the
case may be, is required to be so qualified or licensed;
(iii) All the outstanding shares of capital stock of
the Principal Subsidiary Bank have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject
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to 12 U.S.C. ss.1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy
underlying all such laws);
(v) Each of the Indentures have been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, as applicable, and constitutes
a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
and the Notes have been duly authorized and, when the terms of
the Notes have been established and when the Notes have been
completed, executed, authenticated and delivered in accordance
with the provisions of the applicable Indenture, the
applicable Board Resolutions and this Agreement against
payment of the consideration therefor, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of such Indenture, subject (with respect to the
applicable Indenture and the Notes) as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and further subject to 12
U.S.C. ss.1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy underlying
all such laws;
(vi) The forms of Note attached to the Secretary's
Certificate delivered to the Agents conform in all material
respects to the description thereof contained in the
Prospectus, as supplemented or amended;
(vii) The Registration Statement has become effective
under the 1933 Act; counsel is without knowledge that any stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act and
the Securities Exchange Act of 1934, as amended, (the "1934
Act") and the respective rules thereunder;
(viii) Counsel is without knowledge that (1) there is
any pending or threatened action, suit or proceeding before or
by any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
or (2) any franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit to the
Registration Statement, is not so described or filed as
required;
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(ix) Neither the issuance and sale of the Notes, the
consummation of any other of the transactions contemplated by
this Agreement nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default
under any provision of applicable law or the Certificate of
Incorporation or the Bylaws of the Company, each as amended to
date, or the terms of any material indenture or other
agreement or instrument known to such counsel and to which the
Company or the Principal Subsidiary Bank is a party or bound,
or any order or regulation known to such counsel to be
applicable to the Company or the Principal Subsidiary Bank of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or the Principal Subsidiary Bank; and
(x) No authorization, order, approval or consent of,
or filing with, any court or governmental authority or agency
is necessary or required on behalf of the Company in
connection with the sale of the Notes hereunder, except such
as have been obtained under the 1933 Act or the General Rules
and Regulations under the 1933 Act (the "1933 Act
Regulations"), and such as may be required under foreign or
state securities or insurance laws in connection with the
distribution of the Notes.
In rendering this opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of North Carolina or the United States, or the General Corporate
Law of Delaware, to the extent deemed proper and specified in such
opinion, upon counsel for the Agents or upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agents; and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of
the Company and the Principal Subsidiary Bank and public officials.
(2) The opinion of Stroock & Stroock & Lavan LLP, counsel to
the Agents, covering the matters referred to in subparagraph (1) under
the subheadings (iv) through (vii), inclusive, above.
In rendering the opinion, counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, to the extent deemed proper and
specified in such opinion, upon counsel for the Company or upon the
opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Company; and (B) as to matters
of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and the Principal Subsidiary Bank and public
officials.
(3) In giving their opinions required by subsections (a)(1)
and (a)(2) of this Section, but without opining in connection
therewith, Smith Helms Mulliss & Moore, L.L.P. and Stroock & Stroock &
Lavan LLP shall each additionally state that although they have not
independently verified, are not passing upon and assume no
responsibility
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for, the accuracy, completeness or fairness of the statements contained
in the Registration Statement, counsel has no reason to believe that
the Registration Statement or any amendment thereof at the time it
became effective and as of the date of such opinion, or that the
Prospectus, as amended or supplemented, as of the date of such opinion,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) On the date hereof, the Agents shall have received a certificate of
any Senior Vice President or Treasurer or any other authorized officer of the
Company satisfactory to the Agents, dated as of the date hereof, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition, financial or otherwise, earnings or business
affairs of the Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Prospectus, as supplemented or
amended, (ii) the other representations and warranties of the Company contained
in this Agreement are true and correct in all material respects with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the date of such certificate, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened by the SEC and (v) no
litigation or proceeding shall be threatened or pending to restrain or enjoin
the issuance or delivery of the Notes, or which in any way affects the validity
of the Notes.
(c) On the date hereof, the Agents shall have received a letter from
PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of the date
hereof and in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the 1933
Act Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the General Rules and Regulations under the 1934 Act (the "1934 Act
Regulations").
(iii) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board
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of directors, executive committee and audit committee of the
Company and the boards of directors and executive committees
of its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the
date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in FAS
No. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus and reading the unaudited interim financial data,
if any, for the period from the date of the latest balance
sheet included or incorporated by reference in the
Registration Statement and Prospectus to the date of the
latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding the specific items for which representations
are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration
Statement and Prospectus, for them to be in conformity with
generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in stockholders' equity of the Company and
the subsidiaries on a consolidated basis as compared with the
amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more
than five business days prior to the delivery of such letter,
there was any change in the capital stock or the long-term
debt (other than scheduled repayments of such debt) or any
decreases in stockholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all instances
for changes or
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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.
(d) On the date hereof and on each Settlement Date (as defined herein)
with respect to any purchase of Notes by the Purchasing Agent, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained herein; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Purchasing Agent and to counsel to the Agents.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the SEC
and (iii) there shall have been no material adverse change not in the ordinary
course of business in the consolidated financial condition of the Company and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus, each of which conditions shall be met on the date
of the Terms Agreement and on the corresponding Settlement Date. Further, if
specifically called for by any written agreement by the Purchasing Agent,
including a Terms Agreement, to purchase Notes as principal, the Purchasing
Agent's obligations hereunder and under such agreement, shall be subject to such
additional conditions, including those set forth in clauses (a), (b) and (c)
above, as agreed to by the parties, each of which such agreed conditions shall
be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained,
the Company covenants as follows:
(a) The Company will notify the Agents immediately of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the filing of
any supplement to the Prospectus or
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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 your counsel reasonably object.
(c) The Company will deliver to the Agents without charge, a copy of
(i) the Indentures, (ii) the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) and
(iii) a certified copy of the corporate authorization of the issuance and sale
of the Notes. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes under the Act. Upon
request, the Company will furnish to the Agents a paper copy of any Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K
filed by the Company with the SEC pursuant to the 1934 Act as soon as
practicable after the filing thereof.
(d) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a pricing supplement with
respect to such Notes in substantially the form attached as Exhibit D (a
"Pricing Supplement") and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
(e) Except as otherwise provided in subsection (k) of this Section, if
at any time during the term of this Agreement any event shall occur or condition
exist as a result of which it
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is necessary, in the reasonable opinion of your counsel or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes and to
cease sales of any Notes by the Purchasing Agent, and the Company will promptly
prepare and file with the SEC such amendment or supplement, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Except as otherwise provided in subsection (k) of this Section, on
or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall furnish
promptly such information to the Agents, confirmed in writing, and thereafter
shall cause promptly the Prospectus to be amended or supplemented to include or
incorporate by reference financial information with respect thereto, as well as
such other information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(g) Except as otherwise provided in subsection (k) of this Section, on
or prior to the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall
furnish promptly such information to the Agents and thereafter shall cause
promptly the Registration Statement and the Prospectus to be amended to include
or incorporate by reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Section 11(a) and of Rule 158 under the 1933 Act) covering each twelve-month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule 158)
of the Registration Statement with respect to each sale of Notes.
(i) The Company will endeavor 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
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the distribution of the Notes; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) The Company shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section or the provisions of Sections
VII(b), (c) and (d) during any period from the time (i) the Agents have
suspended solicitation of purchases of the Notes pursuant to a direction from
the Company and (ii) the Agents shall not then hold any Notes as principal
purchased from the Purchasing Agent to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
agree for the Purchasing Agent to purchase Notes as principal.
IV.
(a) The Agents propose to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus and upon the terms
communicated to the Agents from time to time by the Company or the Purchasing
Agent, as the case may be. For the purpose of such solicitation the Agents will
use the Prospectus as then amended or supplemented which has been most recently
distributed to the Agents by the Company, and the Agents will solicit offers to
purchase only as permitted or contemplated thereby and herein and will solicit
offers to purchase the Notes only as permitted by the 1933 Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of offers to
purchase the Notes commencing at any time for any period of time or permanently.
Upon receipt of instructions (which may be given orally) from the Company, the
Agents will suspend promptly solicitation of offers to purchase until such time
as the Company has advised the Agents that such solicitation may be resumed.
Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in denominations of
$1,000 or more (in multiples of $1,000). The Agents are not authorized to
appoint subagents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company. Unless otherwise instructed by the Company, the Purchasing Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes.
The Company shall have the sole right to accept offers to purchase Notes and may
reject any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such rejection shall
not be deemed a breach of its agreements contained herein. The Company agrees to
pay the Purchasing
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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"). The Purchasing Agent and the other Agents will
share the above-mentioned Concession in such proportions as they may agree.
Unless otherwise authorized by the Company, all Notes shall be
sold to the public at a purchase price not to exceed 100% of the principal
amount thereof, plus accrued interest, if any. Such purchase price shall be set
forth in the confirmation statement of the Selling Group Member responsible for
such sale and delivered to the purchaser along with a copy of the Prospectus (if
not previously delivered) and Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. 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 Selling Group Member will be required to acknowledge and agree,
that the Notes (i) are being offered for sale in the United States only, (ii)
are not savings accounts, deposits or other obligations of the Principal
Subsidiary Bank or any other banking affiliate of the Company, (iii) are not
guaranteed by the Principal Subsidiary Bank or any other banking affiliate of
the Company and (iv) are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement in substantially the form attached as Exhibit
C (a "Terms Agreement") to be entered into which will provide for the sale of
such Notes to, and the purchase and reoffering thereof, by the Purchasing Agent
as principal. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by the Purchasing Agent. The offering of Notes by
the Company hereunder and the Purchasing Agent's agreement to purchase Notes
pursuant to any Terms Agreement shall be deemed to have been made on the basis
of the representations, warranties and agreements of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Notes to be purchased pursuant thereto
by the Purchasing Agent as principal, and may specify, among other things, the
principal amount of Notes to be purchased, the interest rate or formula and
maturity date or dates of such Notes, the interest payment dates, if any, the
net proceeds to the Company, the initial public offering price at which the
Notes are proposed to be reoffered, and
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the time and place of delivery of and payment for such Notes (the "Settlement
Date"), whether the Notes provide for a Survivor's Option, whether the Notes are
redeemable or repayable and on what terms and conditions, and any other relevant
terms. In connection with the resale of the Notes purchased, without the consent
of the Company, the Agents are not authorized to appoint subagents or to engage
the service of any other broker or dealer, nor may you reallow any portion of
the Concession paid to you. Terms Agreements, each of which shall be
substantially in the form of Exhibit C hereto, or as otherwise agreed to between
the Company and the Purchasing Agent, may take the form of an exchange of any
standard form of written telecommunication between the Purchasing Agent and the
Company.
VI.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (including any purchase by the Purchasing Agent as principal,
pursuant to a Terms Agreement or otherwise), as of each Settlement Date, and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and has filed with the SEC the Registration
Statement, which has become effective. The Registration Statement meets
the requirements of Rule 415(a)(1) under the 1933 Act and complies in
all other material respects with said Rule.
(ii) (a) the Registration Statement, as amended or
supplemented, the Prospectus and the applicable Indenture will comply
in all material respects with the applicable requirements of the 1933
Act, the Trust Indenture Act and the 1934 Act and the respective rules
and regulations thereunder, (b) the Registration Statement, as amended
as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (c) the Prospectus, as amended or supplemented as of
any such time, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(x) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1)
under the Trust Indenture Act of either of the Trustees or (y) the
information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Agent specifically for use in
connection with the preparation of the Registration Statement and the
Prospectus.
12
<PAGE> 14
(iii) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba; provided,
however, that in the event that such Section 517.075 shall be repealed,
or amended such that issuers shall no longer be required to disclose in
prospectuses information regarding business activities in Cuba or that
a broker, dealer or agent shall no longer be required to obtain a
statement from issuers regarding such compliance, then this
representation and agreement shall be of no further force and effect.
(b) Any certificate signed by any director or officer of the Company
and delivered to the Purchasing Agent or to counsel for the Purchasing Agent in
connection with an offering of Notes or the sale of Notes to the Purchasing
Agent as principal shall be deemed a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
(c) All representations, warranties, covenants and agreements of the
Company contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
(a) Each acceptance by the Company of an offer for the purchase of
Notes, and each delivery of Notes to the Purchasing Agent pursuant to a sale of
Notes to the Purchasing Agent, shall be deemed to be an affirmation that the
representations and warranties of the Company made to the Agents in this
Agreement and in any certificate theretofore delivered pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) Each time:
(i) the Company accepts a Terms Agreement requiring such
updating provisions;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus;
(iii) the Company files a Current Report on Form 8-K
required by Item 2 of Form 8-K with the SEC that is
incorporated by reference into the Prospectus; or
(iv) if required by the Agents after the Registration
Statement or Prospectus has
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<PAGE> 15
been amended or supplemented (other than by an
amendment or supplement providing solely for interest
rates, maturity dates or other terms of Notes or
similar changes or an amendment or supplement which
relates exclusively to an offering of securities
other than the Notes),
the Company shall furnish or cause to be furnished to the Agents a
certificate of any Senior Vice President or Treasurer or any other
authorized officer of the Company satisfactory to the Agents (an
"Authorized Officer") dated the date specified in the applicable Terms
Agreement or dated the date of filing with the SEC of such supplement
or document or the date of effectiveness of such amendment, as the case
may be, in form satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section II(b)
hereof which was last furnished to the Agents are true and correct as
of the date specified in the applicable Terms Agreement or at the time
of such filing, amendment or supplement, as the case may be, as though
made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in said
Section II(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) Each time:
(i) the Company accepts a Terms Agreement requiring such
updating provisions;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report on Form
8-K required by Item 2 of Form 8-K with the
SEC that is incorporated by reference into
the Prospectus; or
(B) the Registration Statement or Prospectus has
been amended or supplemented (other than by
an amendment or supplement providing solely
for interest rates, maturity dates or other
terms of the Notes or similar changes or an
amendment or supplement which relates
exclusively to an offering of securities
other than the Notes),
the Company shall furnish or cause to be furnished forthwith to the
Agents and your counsel the written opinions of Smith Helms Mulliss &
Moore, L.L.P., counsel to the Company, and Paul J. Polking, Executive
Vice President and General Counsel to the Company (or any deputy or
associate general counsel to the Company), or other counsel
satisfactory to the Agents, dated the date specified in the applicable
Terms
14
<PAGE> 16
Agreement or dated the date of filing with the SEC of such supplement
or document or the date of effectiveness of such amendment, as the case
may be, in form and substance satisfactory to the Agents, of the same
tenor as the opinions referred to in Section II(a)(1) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinions; or, in lieu of such opinions, counsel last furnishing such
opinions to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last
opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Each time:
(i) the Company accepts a Terms Agreement requiring such
updating provisions;
(ii) the Company files an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q with the SEC that is
incorporated by reference into the Prospectus; or
(iii) if required by the Agents after:
(A) the Company files a Current Report on Form
8-K required by Item 2 of Form 8-K with the
SEC that is incorporated by reference into
the Prospectus; or
(B) the Registration Statement or Prospectus has
been amended or supplemented to include
additional financial information required to
be set forth or incorporated by reference
into the Prospectus under the terms of Item
11 of Form S-3 under the 1933 Act,
the Company shall cause PricewaterhouseCoopers to furnish the Agents a
letter, dated the date specified in the applicable Terms Agreement or
dated the date of effectiveness of such amendment, supplement or
document filed with the SEC, as the case may be, in form satisfactory
to the Agents, of the same tenor as the portions of the letter referred
to in clauses (i) and (ii) of Section II(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor
as the portions of the letter referred to in clauses (iii) and (iv) of
said Section II(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from
the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers may limit the scope of such letter to the
unaudited financial statements included in such amendment or
supplement. If any other information included therein is of an
accounting, financial or statistical nature, the Agents may request
procedures be performed with respect to such other information. If
15
<PAGE> 17
PricewaterhouseCoopers is willing to perform and report on the
requested procedures, such letter should cover such other information.
Any letter required to be provided by PricewaterhouseCoopers hereunder
shall be provided within 10 business days of the filing of the Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, within a reasonable time of a request made pursuant to subparagraph
(iii) hereof or on the date specified in an applicable Terms Agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the 1933 Act or
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Agent specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of either of the Trustees, and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if the
Agent failed to deliver a copy of the Prospectus as amended or supplemented to
such person in connection with the sale of such Notes excluding documents
incorporated therein by reference at or prior to the written confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission of a material fact contained
in the Prospectus was corrected in the Prospectus as amended or supplemented.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within the
meaning of either the 1933 Act or the 1934
16
<PAGE> 18
Act, to the same extent as the foregoing indemnity from the Company to each
Agent, but only with reference to written information relating to such Agent
furnished to the Company by or on behalf of such Agent specifically for use in
the preparation of the documents referred to in the foregoing indemnity,
provided such information is acknowledged in writing as having been provided by
such Agent for such purpose. This indemnity agreement will be in addition to any
liability which any Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
VIII of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section VIII, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party except to the
extent, if any, that such failure materially prejudices the indemnifying party.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section VIII for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agents in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(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
17
<PAGE> 19
subject in such proportion so that each Agent is responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by such Agent bears to the total sales price from the sale of
Notes sold to or through the Agents to the date of such liability, and the
Company is responsible for the balance. However, if the allocation provided by
the foregoing sentence is not permitted by applicable law, the Company and the
Agents shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and one or more of the
Agents may be subject in such proportion to reflect the relative fault of the
Company on the one hand and the Agents on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Agent, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Agents agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the Agents were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (d). Notwithstanding anything to the contrary contained
herein, (i) in no case shall an Agent be responsible for any amount in excess of
the commissions and underwriting discounts received by such Agent in connection
with the Notes from which such losses, liabilities, claims, damages and expenses
arise and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 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. Such actions
18
<PAGE> 20
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, (i) if there has been, since the date of such agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or (ii) if there shall have occurred,
since the date of such agreement, any outbreak or material escalation of
hostilities or other national or international calamity or crisis, financial or
otherwise, the effect of which is such as to make it, in the sole judgment of
the Purchasing Agent or such Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if, since the date of such
agreement, trading in any securities of the Company has been suspended by the
SEC or a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, (iv) if there shall
have come to the Purchasing Agent's or such Agent's attention any facts that
would cause the Purchasing Agent or such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at the time of such delivery, not misleading, (v) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Issuer as of the date of any agreement by the Purchasing Agent
or such Agent to purchase Notes as principal shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Issuer or (vi) if, since the date of such agreement,
a banking moratorium shall have been declared by either Federal or New York
authorities.
Any Terms Agreement shall be subject to termination in your
absolute discretion on the terms set forth or incorporated by reference therein.
The termination of this Agreement shall not require termination of any agreement
by the Purchasing Agent to purchase Notes as principal, and the termination of
any such agreement shall not require termination of this Agreement.
19
<PAGE> 21
If this Agreement is terminated, Section III(c), (d) and (e),
Section VIII and Section XII hereof shall survive and shall remain in effect;
provided that if at the time of termination of this Agreement an offer to
purchase Notes has been accepted by the Company but the time of delivery to the
Purchasing Agent of such Notes has not occurred, the provisions of all of
Section III, Section IV(b) and Section V shall also survive until time of
delivery.
In the event a proposed offering is not completed according to
the terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all
statements, requests, notices and advices hereunder shall be in writing, or by
telephone if promptly confirmed in writing, and if to an Agent shall be
sufficient in all respects if delivered in person or sent by telex, facsimile
transmission (confirmed in writing), or registered mail to such Agent at its
address, telex or telecopier number set forth on Annex A hereto and if to the
Company shall be sufficient in all respects if delivered or sent by telex,
telecopier or registered mail to the Company at the address specified below. All
such notices shall be effective on receipt.
If to the Company:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell, Senior Vice President
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
Bank of America Corporation
Bank of America Corporate Center
Legal Department NC1-007-20-01
100 North Tryon Street
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street - Suite 3000
Charlotte, North Carolina 28202
20
<PAGE> 22
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 343-2300
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section.
XI.
This Agreement shall be binding upon the Agents and the
Company, and inure solely to the benefit of the Agents and the Company and any
other person expressly entitled to indemnification hereunder and the respective
personal representatives, successors and assigns of each, and no other person
shall acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York. Each party to
this Agreement irrevocably agrees that any legal action or proceeding against it
arising out of or in connection with this Agreement or for recognition or
enforcement of any judgment rendered against it in connection with this
Agreement may be brought in any Federal or New York State court sitting in the
County of New York, New York, and, by execution and delivery of this Agreement,
such party hereby irrevocably accepts and submits to the jurisdiction of each of
the aforesaid courts in person, generally and unconditionally with respect to
any such action or proceeding for itself and in respect of its property, assets
and revenues. Each party hereby also irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such action or proceeding brought in any such court and any
claim that any such action or proceeding has been brought in an inconvenient
forum.
XIII.
If this Agreement is executed by or on behalf of any party,
such person hereby states that at the time of the execution of this Agreement he
has no notice of revocation of the power of attorney by which he has executed
this Agreement as such attorney.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement; (ii) the preparation,
issuance and delivery of the Notes; (iii) the fees and disbursements of the
Company's auditors, of the Trustee and its counsel and of any paying or other
agents appointed by the Company; (iv) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and the
Prospectus; (v) the reasonable fees and disbursements of Stroock & Stroock &
Lavan LLP, counsel for the Agents; (vi) if the Company lists Notes on a
securities exchange, the costs and fees of such listing; (vii) the fees and
expenses, if any, including the reasonable fees and disbursements of Stroock &
Stroock & Lavan LLP, incurred with respect to any filing with the National
Association of
21
<PAGE> 23
Securities Dealers, Inc.; (viii) the cost of providing CUSIP or other
identification numbers for the Notes, (ix) all reasonable expenses (including
fees and disbursements of Stroock & Stroock & Lavan LLP) in connection with
"Blue Sky" qualifications and (x) any fees charged by rating agencies for the
rating of the Notes.
This Agreement may be executed by each of the parties hereto
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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<PAGE> 24
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
BANK OF AMERICA CORPORATION
By:
----------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
-------------------------------------
Name:
Title:
INCAPITAL, LLC
By:
-------------------------------------
Name:
Title:
A.G. EDWARDS & SONS, INC.
By:
-------------------------------------
Name:
Title:
CHARLES SCHWAB & CO., INC.
By:
-------------------------------------
Name:
Title:
EDWARD D. JONES & CO., L.P.
By:
-------------------------------------
Name:
Title:
23
<PAGE> 25
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:
-------------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
-------------------------------------
Name:
Title:
PAINEWEBBER INCORPORATED
By:
-------------------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By:
-------------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
-------------------------------------
Name:
Title:
24
<PAGE> 26
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
Bank of America Corporate Center
NC 1007-06-07
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: Lynn T. McConnell
Fax: (704) 386-6616
Incapital, LLC
30 S. Wacker Dr.
Suite 1800
Chicago, Illinois 60646-7488
Fax: (312) 441-0912
A.G. Edwards & Sons, Inc.
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Karen C. Middleton/Dan Moloney
Fax: (314) 955-5989
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Attention: Kathryn Battles SF345CAL-19-113
Fax: (415) 667-5090
Edward D. Jones & Co., L.P.
Corporate Bond Department
12555 Manchester Road.
St. Louis, Missouri 63131
Attention: Becca Heisler
Fax: (314) 515-3502
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Global Transaction Management Group
4 World Financial Center Floor 15
New York, NY 10080
Attention: Scott G. Primrose
Fax: (212) 449-2234
25
<PAGE> 27
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Fax: (212) 761-0780
w/copy to:
1585 Broadway
29th Floor
New York, New York 10036
Attention: Peter Cooper, Investment Banking Information Center
Fax: (212) 761-0260
PaineWebber Incorporated
Taxable Fixed Income Department
Attention: Corporate Desk
800 Harbor Blvd.
Weehawken, New Jersey 07087
Fax: (201) 352-6900
Prudential Securities Incorporated
One New York Plaza
New York, NY 10292
Attention: Frederick J. Tate/Frank P. Sinatra
Fax: (212) 778-4456/4556
Salomon Smith Barney Inc.
Medium-Term Note Department
388 Greenwich Street
New York, New York 10013
Fax: (212) 816-0949
26
<PAGE> 28
EXHIBIT A
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months..................... 0.200%
23 months to less than 35 months.................... 0.400%
35 months to less than 47 months.................... 0.625%
47 months to less than 59 months.................... 0.750%
59 months to less than 71 months.................... 1.000%
71 months to less than 83 months.................... 1.100%
83 months to less than 95 months.................... 1.200%
95 months to less than 107 months................... 1.300%
107 months to less than 119 months.................. 1.400%
119 months to less than 131 months.................. 1.500%
131 months to less than 143 months.................. 1.600%
143 months to less than 179 months.................. 1.750%
179 months to less than 239 months.................. 2.000%
239 months to 360 months............................ 2.500%
361 months or greater............................... 3.000%
A-1
<PAGE> 29
EXHIBIT B
Bank of America Corporation
$3,000,000,000
INTERNOTES
DUE FROM NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, Due from nine months or more from date of issue are offered on a
continuing basis by Bank of America Corporation. The Notes will be offered by
Incapital, LLC (the "Purchasing Agent"), Banc of America Securities LLC, A.G.
Edwards & Sons, Inc., Charles Schwab & Co., Inc., Edward D. Jones & Co., L.P.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated and
Salomon Smith Barney, Inc. (collectively, the "Agents") pursuant to a Selling
Agent Agreement among the Company and the Agents dated as of the date hereof
(the "Selling Agreement") and one or more terms agreements substantially in the
form attached to the Selling Agreement as Exhibit C (each a "Terms Agreement").
The Notes are being resold by the Purchasing Agent (and by any Agent that
purchases them from the Purchasing Agent) (i) directly to customers of the
Agents or (ii) to selected broker-dealers (the "Selling Group") for distribution
to their customers pursuant to a Master Selected Dealers Agreement (a "Dealers
Agreement") attached to the Selling Agreement as Exhibit E. The Agents have
agreed to use their reasonable best efforts to solicit purchases of the Notes.
The Notes may be either senior debt or subordinated debt and have been
registered with the Securities and Exchange Commission (the "SEC"). The Bank of
New York is the trustee (the "Trustee") for both the senior and the subordinated
debt under restated Indentures dated as of January 1, 2001, as amended from
time to time, between the Company and the Trustee (the "Indenture") covering the
Notes. Pursuant to the terms of the Indenture, The Bank of New York also will
serve as authenticating agent, issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry only form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for The Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department.
B-1
<PAGE> 30
The Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agreement or
the Prospectus and the Pricing Supplement (together, the "Prospectus"), the
relevant provisions of the Notes, the Indenture, the Selling Agreement and the
Prospectus shall control. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Selling Agreement, the
Prospectus in the form most recently filed with the SEC pursuant to Rule 424 of
the 1933 Act, or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated January __, 2001 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated January __, 2001
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date")
not less than nine months after the date of delivery
by the Company of such Note. Notes will mature on any
date selected by the initial purchaser and agreed to
by the Company. "Maturity" when used with respect to
any Note, means the date on which the outstanding
principal amount of such Note becomes due and payable
in full in accordance with its terms, whether at its
Maturity Date or by declaration of acceleration, call
for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note
will be dated and issued as of the date of its
authentication by the Trustee.
Each Global Note will bear an original issue date
(the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently
issued upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
B-2
<PAGE> 31
Identification The Company has received from the CUSIP Service
Numbers: Bureau (the CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's") one series
of CUSIP numbers consisting of approximately 900
CUSIP numbers for future assignment to Global Notes.
The Company will provide the Purchasing Agent, DTC
and the Trustee with a list of such CUSIP numbers. On
behalf of the Company, the Purchasing Agent will
assign CUSIP numbers as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Notes. The Company
will reserve additional CUSIP numbers when necessary
for assignment to Global Notes and will provide the
Purchasing Agent, the Trustee and DTC with the list
of additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will
be issued only in fully registered form without
coupons. Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the
Trustee. The beneficial owner of a Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one or
more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request, may deliver to
DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Notes having the same
terms or (except that Issue Dates need not be the
same) and for which interest, if any, has been paid
to the same date and which otherwise constitute Notes
of the same series and
B-3
<PAGE> 32
tenor under the Indenture, (b) a date, occurring at
least 30 days after such written notice is delivered
and at least 30 days before the next Interest Payment
Date, if any, for the related Notes, on which such
Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP number,
obtained from the Company, to be assigned to Such
replacement Global Note. Upon receipt of such a
notice, DTC will send to its participants (including
the Issuing Agent) and the Trustee a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau written notice setting forth
such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $400,000,000 in aggregate
principal or face amount, one replacement Global Note
will be authenticated and issued to represent each
$400,000,000 of principal or face amount of the
exchanged Global Notes and an additional Global Note
will be authenticated and issued to represent any
remaining principal amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise agreed by the Company, Notes will be
issued in denominations of $1,000 or more (in
multiples of $1,000). Global Notes will be
denominated in principal or face amounts not in
excess of $400,000,000 or any other limit set by the
DTC (the "Permitted Amount"). If one or more Notes
having an aggregate principal or face amount in
excess of the Permitted Amount would, but for the
preceding sentence, be represented by a single Global
Note, then one Global Note will be issued to
represent each Permitted Amount principal or face
amount of such Note or Notes and an additional Global
Note will be Issued to represent any remaining
principal amount of such Note or Notes. In such case,
each of the Global Notes representing such Note or
Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to such Note.
B-4
<PAGE> 33
Interest: General. Each Note will bear interest at a fixed
rate. Interest on each Note will accrue from the
Issue Date of such Note for the first interest period
and from the most recent Interest Payment Date to
which interest has been paid for all subsequent
interest periods. Except as set forth hereafter, each
payment of interest on a Note will include interest
accrued to, but excluding, as the case may be, the
Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st
day of a month in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month). Any payment of principal,
premium or interest required to be made on a day that
is not a Business Day (as defined below) may be made
on the next succeeding Business Day and no interest
shall accrue as a result of any such delayed payment.
Each pending deposit message described under
Settlement Procedure "C" below will be routed to
Standard & Poor's Corporation, which will use the
message to include certain information regarding the
related Notes in the appropriate daily bond report
published by Standard & Poor's Corporation.
Each Note will bear interest from, and including, its
Issue Date at the rate per annum set forth thereon
and in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available
for payment, in full. Unless otherwise specified in
the applicable Pricing Supplement, interest on each
Note will be payable either monthly, quarterly,
semi-annually or annually on each Interest Payment
Date and at Maturity (or on the date of redemption or
repayment if a Note is repurchased by the Company
prior to maturity pursuant to mandatory or optional
redemption or repayment provisions or the Survivor's
Option). Interest will be payable to the person in
whose name a Note is registered at the close of
business on the Regular Record Date next preceding
each Interest Payment Date; provided, however,
interest payable at Maturity, on a date of redemption
or repayment or in connection with the exercise of
the Survivor's Option will be payable to the person
to whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which
is not a Business Day need not be made on such day,
but may be made on the next succeeding Business Day
with the same force and effect as if
B-5
<PAGE> 34
made on such day, and no additional interest shall
accrue as a result of such delayed payment. Unless
otherwise specified in the applicable Pricing
Supplement, any interest on the Notes will be
computed on the basis of a 360-day year of twelve
30-day months. The interest rates the Company will
agree to pay on newly-issued Notes are subject to
change without notice by the Company from time to
time, but no such change will affect any Notes
already issued or as to which an offer to purchase
has been accepted by the Company.
The Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth
day of each calendar month, commencing in the
calendar month that next succeeds the month in which
the Note is issued. In the case of a Note that
provides for quarterly interest payments, the
Interest Payment Dates shall be the fifteenth day of
each third month, commencing in the third succeeding
calendar month following the month in which the Note
is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment
dates shall be the fifteenth day of each sixth month,
commencing in the sixth succeeding calendar month
following the month in which the Note is issued. In
the case of a Note that provides for annual interest
payments, the Interest Payment Date shall be the
fifteenth day of every twelfth month, commencing in
the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record
Date with respect to any Interest Payment Date shall
be the first day of the calendar month in which such
Interest Payment Date occurred, except that the
Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest
Payment Date.
Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or
from and including the last day in respect of which
interest has been paid (or duly provided for), as the
case may be, to, but excluding, the Interest Payment
Date or Maturity Date, as the case may be.
Calculation of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months. (Examples of interest
calculations are as follows: October 1, 1998 to April
1, 1999 equals 6 months and 0 days, or 180 days; the
interest paid equals 180/360 times the annual rate of
interest times the principal amount of the Note. The
period from December 3, 1998 to April 1, 1999 equals
3 months and 28
B-6
<PAGE> 35
days, or 118 days; the interest payable equals
118/360 times the annual rate of interest times the
principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any weekday that
is (1) not a legal holiday in New York, New York or
Charlotte, North Carolina and (2) not a day on which
banking institutions in those cities are authorized
or required by law or regulation to be closed.
Payments of Principal
and Interest: Payments of Principal and Interest. Promptly after
each Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest, if any, to be
paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with a Maturity Date) and the total of
such amounts. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than on the Maturity Date), at the times
and in the manner set forth below under "Manner of
Payment." If any Interest Payment Date for any Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment for the
period from and after such Interest Payment Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver
to the Company and DTC a written list of principal,
premium, if any, and interest to be paid on each
Global Note representing Notes maturing or subject to
redemption (pursuant to a sinking fund or otherwise)
or repayment ("Maturity") in the following month. The
Trustee, the Company and DTC will confirm the amounts
of such principal, premium, if any, and interest
payments with respect to each Global Note on or about
the fifth Business Day preceding the Maturity Date of
such Global Note. On the Maturity Date, the Company
will pay to the Trustee, and the Trustee in turn will
pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on
such Maturity Date, at the times and in the manner
set forth below under "Manner of Payment." If the
Maturity Date of any Global Note is not a
B-7
<PAGE> 36
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Maturity Date. Promptly after
payment to DTC of the principal and interest due on
the Maturity Date of such Global Note and all other
Notes represented by such Global Note, the Trustee
will cancel and destroy such Global Note in
accordance with the Indenture and so advise the
Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in immediately
available funds on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Prior to 10:00 a.m., New
York City time, on the date of Maturity or as soon as
possible thereafter, the Trustee will make payment to
DTC in accordance with existing arrangements between
DTC and the Trustee, in funds available for immediate
use by DTC, each payment of interest, principal and
premium, if any, due on a Global Note on such date.
On each Interest Payment Date (other than on the
Maturity Date) the Trustee will pay DTC such interest
payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants with payments in
amounts proportionate to their respective holdings in
principal amount of beneficial interest in such
Global Note as are recorded in the book-entry system
maintained by DTC. Neither the Company nor the
Trustee shall have any direct responsibility or
liability for the payment by DTC of the principal of,
or premium, if any, or interest on, the Notes to such
Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the Participant, indirect participant in DTC or other
person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the
Maturities, the Issue Price
B-8
<PAGE> 37
and the interest rates to be borne by Notes that may
be sold as a result of the solicitation of orders by
the Agents. If the Company decides to set interest
rates borne by any Notes in respect of which the
Agents are to solicit orders (the setting of such
interest rates to be referred to herein as "Posting")
or if the Company decides to change interest rates
previously posted by it, it will promptly advise the
Agents of the prices and interest rates to be posted.
The Purchasing Agent will assign a separate CUSIP
number for each tranche of Notes to be posted, and
will so advise and notify the Company and the Trustee
of said assignment by telephone and/or by telecopier
or other form of electronic transmission. The
Purchasing Agent will include the assigned CUSIP
number on all Posting notices communicated to the
Agents and Selling Group members.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selling Group members the aggregate principal amount
and Maturities of, along with the interest rates to
be borne by, each tranche of Notes that is the
subject of the Posting. Thereafter, the Purchasing
Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes
accordingly.
Purchase of Notes by
the Purchasing Agent: The Purchasing Agent will, no later than 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
B-9
<PAGE> 38
purchase Notes received by it, other than those
rejected by it in whole or in part in the reasonable
exercise of its discretion. No order for less than
$1,000 principal amount of Notes will be accepted.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company will
(i) promptly execute and return such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing
Agent that its offer to purchase the Notes of a
particular tranche has been rejected, in whole or in
part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selling
Group members of the action taken by the Company.
Preparation of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form
attached to the Selling Agreement as Exhibit D)
reflecting the terms of such Note and will have filed
such Pricing Supplement with the SEC in accordance
with the applicable paragraph of Rule 424(b) under
the Act. The Company shall use its reasonable best
efforts to send such Pricing Supplement by email or
telecopy to the Purchasing Agent and the Trustee by
3:00 p.m. (New York City Time) on the applicable
Trade Day. The Purchasing Agent shall use its
reasonable best efforts to send such Pricing
Supplement and the Prospectus by email or telecopy or
overnight express (for delivery by the close of
business on the applicable Trade Day, but in no event
later than 11:00 a.m. New York City time, on the
Business Day following the applicable Trade Date) to
each Agent (or other Selling Group Member) which made
or presented the offer to purchase the applicable
Note and the Trustee at the following applicable
address:
if to Banc of America Securities LLC, to:
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: Lynn T. McConnell
Telephone: (704) 386-6616
Telecopier: (704) 386-9399
if to Incapital, LLC, to:
30 S. Wacker Drive
B-10
<PAGE> 39
Chicago, Illinois 60646-7488
Telephone: (312) 441-0044
Telecopier: (312) 441-0912
if to A.G. Edwards & Sons, Inc, to:
#1 North Jefferson
7th Floor Bond Department
St. Louis, Missouri 63103
Attention: Karen C. Middleton/Dan Moloney
Telephone: (314) 955-5000
Telecopier: (314) 955-5989
if to Charles Schwab & Co., Inc., to:
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94101
Attention: Kathryn Battles SF345CAL-19-113
Telephone: (415) 667-5176
Telecopier: (415) 667-5090
if to Edward D. Jones & Co., L.P., to:
Corporate Bond Department
12555 Manchester Road
St. Louis, Missouri 63131
Attention: Becca Heisler
Telephone: (314) 515-3500
Telecopier: (314) 515-3502
if to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to:
Merrill Lynch Production Technologies
44B Colonial Drive
Piscataway, New Jersey 08854
Attention: Prospectus Operations/ Nachman Kimerling
Telephone: (732) 885-2768
Telecopier: (732) 885-2774/5/6
email: [email protected]
if to Morgan Stanley & Co. Incorporated, to:
1585 Broadway
B-11
<PAGE> 40
2nd Floor
New York, New York 10036
Attention: MTN Trading Desk, Carlos Cabrera
Telephone: (212) 761-4000
Telecopier: (212) 761-0780
if to PaineWebber Incorporated, to:
Taxable Financial Income Department
Attention: Corporate Desk
800 Harbor Blvd.
Weehawken, New Jersey 07087
Telephone: (201) 352-7150
Telecopier: (201) 352-6900
if to Prudential Securities Incorporated, to:
111 8th Avenue
New York, NY 10011-0804
Attention: Thomas Sloan
if to Salomon Smith Barney, Inc., to:
Attention: Annabelle Avila
Brooklyn Army Terminal
140 58th Street
8th Floor
Brooklyn, New York 11220
Telephone: (718) 765-6725
Telecopier: (718) 765-6734]
and if to the Trustee, to:
The Bank of New York
10161 Centurion Parkway
Jacksonville, FL 32256
Attention: Corporate Trust Department
For record keeping purposes, one copy of each Pricing
Supplement, as so filed, shall also be mailed or
telecopied to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
B-12
<PAGE> 41
Attention: James R. Tanenbaum, Esq.
Telephone: (212) 806-5400
Telecopier (212) 806-6006
and to:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Attention: Lynn T. McConnell
Telephone: (704) 386-6616
Telecopier: (704) 388-9939
Each such Agent (or Selling Group Member), in turn,
pursuant to the terms of the Selling 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 Selling Group member.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
Delivery of Confirmation
and Prospectus to Purchaser
by Presenting Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a
Prospectus and Pricing Supplement as herein described
with respect to each Note sold by it.
For each offer to purchase a Note accepted by or on
behalf of the Company, the Purchasing Agent will
confirm in writing with each Agent or Selling Group
Member the terms of such Note, the amount being
purchased by such Agent or Selling Group Member 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
Selling Group member, as the case may be, will
deliver to investors purchasing the Notes the
Prospectus (including the Pricing Supplement) in
relation to such Notes prior to or simultaneously
with delivery of the confirmation of sale or delivery
of the Note.
B-13
<PAGE> 42
Settlement: The receipt of immediately available funds by the
Company in payment for Notes and the authentication
and issuance of the Global Note representing such
Notes shall constitute "Settlement" with respect to
such Note. All orders accepted by the Company will be
settled within one to three Business Days pursuant to
the timetable for Settlement set forth below, unless
the Company and the purchaser agree to Settlement on
a later date, and shall be specified upon acceptance
of such offer; provided, however, in all cases the
Company will notify the Trustee on the date issuance
instructions are given.
Settlement Procedures: In the event of a purchase of Notes by any Agent, as
agent, appropriate Settlement details, if different
from those set forth below, will be set forth in the
applicable Terms Agreement to be entered into between
such Agent and the Company pursuant to the Selling
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;
3. Interest Rate per annum;
4. Interest Payment Frequency;
5. Settlement Date;
6. Maturity Date;
7. Price to Public;
8. Purchasing Agent's commission
determined pursuant to Section
IV(a) of the Selling Agreement;
B-14
<PAGE> 43
9. Net proceeds to the Company;
10. Trade Date;
11. If a Note is redeemable by the
Company or repayable by the
Noteholder, such of the following
as are applicable:
(i) The date on and after
which such Note may be
redeemed/repaid (the
"Redemption/Repayment
Commencement Date"),
(ii) Initial redemption/
repayment price
(% of par), and
(iii) Amount (% of par) that the
initial
redemption/repayment price
shall decline (but not
below par) on each
anniversary of the
Redemption/Repayment
Commencement Date;
12. Whether the Note has a Survivor's
Option;
13. If a Discount Note, the total
amount of original issue discount,
the yield to maturity and the
initial accrual period of original
issue discount;
14. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
15. Such other terms as are necessary
to complete the applicable form of
Note.
B-15
<PAGE> 44
B. The Company will confirm the previously
assigned CUSIP number to the Global Note
representing such Note and then advise the
Trustee and the Purchasing Agent by
telephone (confirmed in writing at any time
on the same date) or by telecopier or other
form of electronic transmission of the
information received in accordance with
Settlement Procedure "A" above, the assigned
CUSIP number and the name of the Purchasing
Agent. Each such communication by the
Company will be deemed to constitute a
representation and warranty by the Company
to the Trustee and the Agents that (i) such
Note is then, and at the time of issuance
and sale thereof will be, duly authorized
for issuance and sale by the Company; (ii)
such Note, and the Global Note representing
such Note, will conform with the terms of
the Indenture; and (iii) upon authentication
and delivery of the Global Note representing
such Note, the aggregate principal amount of
all Notes issued under the Indenture will
not exceed the aggregate principal amount of
Notes authorized for issuance at such time
by the Company.
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following Settlement
information:
1. The information received in
accordance with Settlement
Procedure "A".
2. The numbers of the participant
accounts maintained by DTC on
behalf of the Trustee and the
Purchasing Agent.
3. The initial Interest Payment Date
for such Note, number of days by
which such date succeeds the
related DTC record date (which term
means the Regular Record Date), and
if then calculated, the amount of
interest payable on such Initial
Interest Payment Date (which amount
shall have been confirmed by the
Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
B-16
<PAGE> 45
5. The frequency of interest.
6. Whether such Global Note represents
any other Notes issued or to be
issued (to the extent then known).
D. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a
Global Note representing such Note in a form
that has been approved by the Company, the
Agents and the Trustee.
F. The Trustee will authenticate the Global
Note representing such Note and maintain
possession of such Global Note.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Purchasing Agent maintained by DTC and (ii)
debit the settlement account of the
Purchasing Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of such Note
less the Purchasing Agent's commission. The
entry of such a deliver order shall be
deemed to constitute a representation and
warranty by the Trustee to DTC that (a) the
Global Note representing such Note has been
issued and authenticated and (b) the Trustee
is holding such Global Note pursuant to the
Certificate Agreement.
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Participants
to whom such Note is to be credited
maintained by DTC and (ii) debit the
settlement accounts of such Participants and
credit the settlement account of the
Purchasing Agent maintained by DTC, in an
amount equal to the price of the Note less
the agreed upon commission so credited to
their accounts.
B-17
<PAGE> 46
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained at Bank of America, N.A.
funds available for immediate use in an
amount equal to the amount credited to the
Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global
Note representing such Note by first-class
mail to the Company.
L. The Purchasing Agent will confirm the
purchase of each Note to the purchaser
thereof either by transmitting' to the
Participant to whose account such Note has
been credited a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
purchaser. In all cases the Prospectus as
most recently amended or supplemented must
accompany or precede such confirmation.
M. Each Business Day, the Trustee will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture and setting
forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the
Company has advised the Trustee but which
have not yet been settled.
Settlement Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details,
if different from those set forth below will be set
forth in the applicable Terms Agreement to be entered
into between the Purchasing Agent and the Company
pursuant to the Selling 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:
B-18
<PAGE> 47
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-19
<PAGE> 48
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains Notes having the same terms and
having a principal amount that is at least equal to
the principal amount of such Note to be debited. If
withdrawal messages are processed with respect to all
the Notes issued or to be issued represented by a
Global Note, the Trustee will cancel such Global Note
in accordance with the Indenture, make appropriate
entries in its records and so advise the Company. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to one
or more, but not all, of the Notes represented by a
Global Note, the Trustee will exchange such Global
Note for two Global Notes, one of which shall
represent such Notes and shall be cancelled
immediately after issuance, and the other of which
shall represent the remaining Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Note is not timely paid
to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including
an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through
DTC's participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G"
and "H", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than
default by the Agent in the performance of its
obligations hereunder or under the Selling Agreement,
the Company will reimburse the Agent on an equitable
basis for its reasonable out-of-pocket accountable
expenses actually incurred and loss of the use of
funds during the period when they were credited to
the account of the Company.
B-20
<PAGE> 49
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note, DTC may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure
to settle with respect to one or more, but not all,
of Notes that were to have been represented by a
Global Note, the Trustee will provide, in accordance
with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Notes to have been represented
by such Global Note and will make appropriate entries
in its records.
Procedure for
Rate Changes: Each time a decision has been reached to change
rates, the Company will promptly advise the Agents of
the new rates, who will forthwith suspend
solicitation of purchases of Notes at the prior
rates. The Agents may telephone the Company with
recommendations as to the changed interest rates.
Suspension of Solicitation
Amendment or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Selling Agreement, the
Company may instruct the Agents to suspend at any
time for any period of time or permanently, the
solicitation of orders to purchase Notes. Upon
receipt of such instructions (which may be given
orally), each Agent will forthwith suspend
solicitation until such time as the Company has
advised it that solicitation of purchases may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents and the Trustee whether such orders
may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such orders may not be settled or that copies of such
Prospectus may not be so delivered.
B-21
<PAGE> 50
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents and
the Trustee with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Selling Agreement.
Subject to the provisions of the Selling Agreement,
the Company may file with the Commission any
supplement to the Prospectus relating to the Notes.
The Company will provide the Agents and the Trustee
with copies of any such supplement, and confirm to
the Agents that such supplement has been filed with
the SEC.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with
any payment to the Company, or the Agents or the
purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Advertising Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation
to purchase the Notes. The expense of such
advertising will be solely the responsibility of such
Agent, unless otherwise agreed to by the Company.
B-22
<PAGE> 51
EXHIBIT C
TERMS AGREEMENT
, 2001
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Division NC 1-007-23-01
Charlotte, North Carolina 28255
Attention: Karen A. Gosnell, Senior Vice President
The undersigned agrees to purchase the following aggregate principal
amount of Bank of America Corporation Senior/Subordinated InterNotes:
$____________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Senior/Subordinated Notes:
Interest Rate: _____%
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: _________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and
declining by ___% of the Principal Amount on each anniversary of the
Initial Redemption/Repayment Date until the Redemption/Repayment Price
is 100% of the Principal Amount.
C-1
<PAGE> 52
[Any other terms and conditions agreed
to by the Purchasing Agent and the Company]
INCAPITAL, LLC
By:
----------------------------
Title:
----------------------------
ACCEPTED
BANK OF AMERICA CORPORATION
By:
------------------------------
Title:
------------------------------
C-2
<PAGE> 53
Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated:_____________ Rule 424(b)(3)
(To Prospectus Dated ______________, 2001) File No. 333-______
Pricing Supplement No. _____________________
U.S. $3,000,000,000
BANK OF AMERICA CORPORATION
INTERNOTES(SM)
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
_________________________________________________________________
Trade Date: ________________________
Issue Date: ________________________
Agent: _____________________________
_________________________________________________________________
<TABLE>
<CAPTION>
---------- --------------- --------------- ---------------- ---------------- -------------------- --------------
CUSIP AGGREGATE PRICE CONCESSION NET SENIOR OR INTEREST RATE
PRINCIPAL TO PROCEEDS SUBORDINATED
AMOUNT PUBLIC TO ISSUER
---------- --------------- --------------- ---------------- ---------------- -------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
---------- --------------- --------------- ---------------- ---------------- -------------------- --------------
</TABLE>
<TABLE>
<CAPTION>
---------------------- ------------------- -------------------- ------------------------ ------------------------
INTEREST PAYMENT MATURITY SURVIVOR'S OPTION REDEMPTION OR REPAYMENT REDEMPTION/ REPAYMENT
FREQUENCY DATE YES/NO TERMS
---------------------- ------------------- -------------------- ------------------------ ------------------------
<S> <C> <C> <C> <C>
---------------------- ------------------- -------------------- ------------------------ ------------------------
</TABLE>
Other Terms:____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
D-1
<PAGE> 54
EXHIBIT E
Master Selected Dealer Agreement
<<FirstName>>
<<Company>>
<<Address1>>
<<Address2>>
<<City>>, <<State>> <<Postal>>
Dear Selected Dealer:
In connection with public offerings of securities after the
date hereof for which we are acting as manager of an underwriting syndicate or
are otherwise responsible for the distribution of securities to the public by
means of an offering of securities for sale to selected dealers, you may be
offered the right as such a selected dealer to purchase as principal a portion
of such securities. This will confirm our mutual agreement as to the general
terms and conditions applicable to your participation in any such selected
dealer group organized by us as follows.
1. Applicability of this Agreement. The terms and conditions
of this Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein Incapital, LLC clearing through BNY Clearing
Services, LLC (the "Account") (acting for its own Account or for the account of
any underwriting or similar group or syndicate) is responsible for managing or
otherwise implementing the sale of the Securities to selected dealers ("Selected
Dealers") and has expressly informed you that such terms and conditions shall be
applicable. Any such offering of Securities to you as a Selected Dealer is
hereinafter called an "Offering". In the case of any Offering where we are
acting for the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be for the
benefit of, and binding upon, such Underwriters, including, in the case of any
Offering where we are acting with others as representatives of Underwriters,
such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering: (i) will be subject to delivery of the Securities and their acceptance
by us and any other Underwriters; (ii) may be subject to the approval of all
legal matters by counsel and the satisfaction of other conditions, and (iii) may
be made on the basis of reservation of Securities or an allotment against
subscription. We will advise you by electronic mail, facsimile or other form of
written communication ("Written Communication", which term, in the case of any
Offering described in Section 3(a) or 3(b) hereof, may include a prospectus or
offering circular) of the particular method and supplementary terms
E-1
<PAGE> 55
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, 30 S. Wacker, Suite 1800,
Chicago, Illinois 60606-7488 (Fax: (312) 441-0912). We reserve the right to
reject any acceptance in whole or in part. Unless notified otherwise by us,
Securities purchased by you shall be paid for on such date as we shall
determine, on one day's prior notice to you, by certified or official bank
check, in an amount equal to the Public Offering Prices (as hereinafter defined)
or, if we shall so advise you, at such Public Offering Price less the Concession
(as hereinafter defined), payable in New York Clearing House funds to the order
of BNY Clearing Services, LLC clearing for the account of Incapital, LLC,
against delivery of the Securities. If Securities are purchased and paid for at
such Public Offering Price, such Concession will be paid after the termination
of the provisions of Section 3(c) hereof with respect to such Securities.
Notwithstanding the foregoing, unless notified otherwise by us, payment for and
delivery of Securities purchased by you shall be made through the facilities of
The Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the applicable rules and regulations of the
Securities and Exchange Commission thereunder. You represent and warrant that
you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
E-2
<PAGE> 56
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering
of Securities, we will inform you by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public at no more than the Public Offering Price. If so notified by us, you may
sell Securities to the public at a lesser negotiated price than the Public
Offering Price, but in an amount not to exceed the "Concession." If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in 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
E-3
<PAGE> 57
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 documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of section 24 of Article III of
the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker or
dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provisions of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling Concession, discount or other
allowance is granted to you, clauses (1) and (2) of the preceding paragraph will
be applicable.
(f) Relationship among Underwriters and Selected Dealers. We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. Unless otherwise
specified in a separate agreement between you and us, this agreement does not
authorize you to act as agent for: (i) us; (ii) any Underwriter; (iii) the
issuer; or (iv) other seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. Nothing contained herein
or in any Written Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal income tax purposes, then you elect to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986 and agree not to take any position inconsistent
with that election. You authorize us, in our
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discretion, to execute and file on your behalf such evidence of that election as
may be required by the Internal Revenue Service. In connection with any
Offering, you shall be liable for your proportionate amount of any tax, claim,
demand or liability that may be asserted against you alone or against one or
more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you
as to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
Furthermore, you acknowledge and agree that certain Offerings
of Securities (i) may be made in the United States only and/or (ii) may be
offerings of Securities of an affiliate of a United States bank but are not
savings accounts, deposits or other obligations of any such bank and would not
be guaranteed by such bank or insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
4. Termination, Supplements and Amendments. This Agreement
shall continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions
set forth herein
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with respect to any Offering together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
Please confirm by signing and returning to us the enclosed
copy of this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you will request and have received from us sufficient copies
of the final prospectus or offering circular, as the case may be, with respect
to such Offering in order to comply with your undertakings in Section 3(a) or
3(b) hereof.
Very truly yours,
INCAPITAL, LLC
By:
--------------------------
Jeffrey P. Novak
Managing Member
CONFIRMED: ______________________, 20___
<<Company>>
By: _____________________________________
Name: ___________________________________
(Print name)
Title: __________________________________
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