Exhibit 4.17
[FORM OF REGISTERED GLOBAL SUBORDINATED NOTE]
BANK OF AMERICA CORPORATION
Medium-Term Subordinated Note, Series L
REGISTERED GLOBAL SUBORDINATED NOTE
This Note is a global security within the meaning of the Indenture dated as of January 1,
1995, as supplemented from time to time (the Indenture), between Bank of America Corporation and
The Bank of New York Mellon Trust Company, N.A., as successor trustee (the Trustee) under the
Indenture and is registered in the name of [Cede & Co., as the nominee of The Depository Trust
Company (the Depository)] [The Bank of New York Mellon Depository (Nominees) Limited, as the
nominee of The Bank of New York Mellon, the common depository (the Common Depository) for
Euroclear Bank S.A./N.V., as operator of the Euroclear system, and/or Clearstream Banking, société
anonyme, Luxembourg]. This Note is not exchangeable for definitive or other Notes registered in
the name of a person other than [the Depository or its nominee] [the Common Depository], except in
the limited circumstances described in the Indenture or in this Note, and no transfer of this Note
(other than a transfer as a whole by [the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor depository or a nominee of such successor depository] [the Common
Depository to a successor common depository]) may be registered except in the limited circumstances
described in the Indenture.
[Unless this Note is presented by an authorized representative of The Depository Trust Company
(the Depository) (55 Water Street, New York, New York) to the Issuer or its agent for
registration of transfer, exchange or payment, and this Note is registered in the name of CEDE &
CO., or such other name as requested by an authorized representative of The Depository Trust
Company, and unless any payment is made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO.,
has an interest herein.]1
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE INDEBTEDNESS OF BANK OF AMERICA CORPORATION EVIDENCED BY THIS NOTES, INCLUDING THE
PRINCIPAL HEREOF AND INTEREST HEREON, IS, TO THE EXTENT AND IN THE MANNER SET FORTH IN THE
INDENTURE, SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO BANK OF AMERICA CORPORATIONS OBLIGATIONS
TO HOLDERS OF SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE, AND EACH HOLDER OF THIS NOTE, BY
THE ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS OF THE INDENTURE.
|
|
|
1 |
|
Modify in the case of all Registered Global Notes other
than DTC Global Notes. |
THIS NOTE IS NOT AN OBLIGATION OF OR GUARANTEED BY BANK OF AMERICA, N.A. OR ANY OTHER BANKING
OR NONBANKING AFFILIATE OF BANK OF AMERICA CORPORATION.
THIS NOTE IS SOLD IN MINIMUM DENOMINATIONS AS NOTED HEREIN AND IN THE PRICING SUPPLEMENT
ATTACHED HERETO AND CANNOT BE EXCHANGED FOR NOTES IN SMALLER DENOMINATIONS. EACH OWNER OF A
BENEFICIAL INTEREST IN THIS NOTE IS REQUIRED TO HOLD A BENEFICIAL INTEREST OF A PRINCIPAL AMOUNT OF
THIS NOTE EQUAL TO THE MINIMUM AUTHORIZED DENOMINATION AT ALL TIMES.
2
|
|
|
|
|
No. R-
|
|
|
|
Registered |
CUSIP No.: |
|
|
|
|
ISIN: |
|
|
|
|
Common Code:
|
|
|
|
Principal Amount: [$] |
BANK OF AMERICA CORPORATION
Medium-Term Subordinated Note, Series L
[INSERT SPECIFIC NAME OR DESIGNATION OF THE NOTES]
REGISTERED GLOBAL SUBORDINATED NOTE
|
|
|
|
|
ORIGINAL ISSUE DATE2:
|
|
o
|
|
This Note is an
Extendible Note at the
Holders Option. [See
attached Rider] |
STATED MATURITY DATE:
|
|
o
|
|
This Note is an
Extendible Note at the
Issuers Option. [See
attached Rider] |
CURRENCY:
o U.S. Dollars
o Other (specify):
|
|
o
|
|
This Note is an
Amortizing Note. [See
payment schedule in
attached Pricing
Supplement] |
|
o FIXED RATE NOTE |
|
|
|
|
o FLOATING RATE NOTE |
|
|
|
|
o FLOATING RATE/FIXED RATE NOTE |
|
|
|
|
|
|
|
|
|
RECORD DATES: |
|
[CALCULATION AGENT:] |
BANK OF AMERICA CORPORATION, a Delaware corporation (herein called the Issuer, which term
includes any successor corporation), for value received, hereby promises to pay to [CEDE & CO., as
nominee for The Depository Trust Company][THE BANK OF NEW YORK MELLON DEPOSITORY (NOMINEES)
LIMITED, as nominee of The Bank of New York, the common depository for Euroclear Bank S.A./N.V., as
operator of the Euroclear system, and/or Clearstream Banking, société anonyme, Luxembourg], or its
registered assigns, the principal amount specified above or as set forth in the Pricing Supplement
(the Pricing Supplement) attached hereto, as adjusted in accordance with Schedule 1 hereto, on
the Stated Maturity Date3
specified above (except to the extent redeemed or repaid prior to the Stated Maturity Date), and to
pay interest thereon (i) in accordance with the provisions set forth on the reverse hereof in
Section 2(a), if this Note is designated as a Fixed Rate Note above, (ii) in accordance with the
provisions set forth on the reverse hereof under the Section 2(b), if this Note is designated as a
Floating Rate
|
|
|
2 |
|
The form provides that interest, if any, will accrue
from the Original Issue Date. In the event a series of Notes is reopened,
interest will accrue from the Original Issue Date for all tranches of Notes of
that series. However, in the event a series of Notes is reopened, the
authentication date for each tranche of Notes will be the date that tranche of
Notes is settled, which may be different from the Original Issue Date. |
|
3 |
|
This form provides for Notes that will mature only on a
specified date. If the Maturity of Notes of a series may be extended at the
option of the holder, or if the Issuer may elect the extension of Maturity of
the Notes of a series, the form, as used, will be modified by the applicable
Rider attached to this Note to provide for additional terms relating to such
renewal or extension, as the case may be, including the period or periods for
which the Maturity may be extended, changes in the interest rate, if any, and
requirements for notice. |
3
Note above, or (iii) in accordance with the provisions set forth on the reverse
hereof in Section 2(c), if this Note is designated as a Floating Rate/Fixed Rate Note above, in
each case as such provisions may be modified or supplemented by the terms and provisions set forth
in the Pricing Supplement, and (to the extent that the payment of such interest shall be legally
enforceable) to pay interest at the Default Rate per annum specified in the Pricing Supplement on
any overdue principal and premium, if any, and on any overdue installment of interest. If no
Default Rate is specified in the Pricing Supplement, the Default Rate shall be the fixed or
floating Interest Rate or Interest Rates on this Note specified in the Pricing Supplement.
Maturity, when used herein, means the date on which the principal of this Note or an installment
of principal becomes due and payable in full in accordance with the terms of this Note and of the
Indenture, whether at the Stated Maturity Date or by declaration of acceleration, call for
redemption, prepayment at the holders option or otherwise.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Note (or one or more predecessor Notes
evidencing all or a portion of the same debt as this Note) is registered, unless otherwise
specified on the face hereof or in the Pricing Supplement (i) for book-entry only Notes denominated
in U.S. dollars, at the close of business on the date that is one business day (in Charlotte, North
Carolina and New York City) prior to such Interest Payment Date or (ii) for book-entry only Notes
denominated in a currency other than U.S. dollars and for any Notes in definitive form, at the
close of business on the fifteenth calendar day immediately preceding such Interest Payment Date
(each, referred to herein as the Regular Record Date); provided, however, that
the first payment of interest on any Note with an Original Issue Date between a Regular Record Date
and an Interest Payment Date or on an Interest Payment Date will be made on the Interest Payment
Date following the next Regular Record Date to the person in whose name this Note is registered at
the close of business on such next Regular Record Date; and provided, further, that
interest payable at Maturity (the Maturity Date) will be payable to the person to whom the
principal hereof shall be payable. The principal so payable, and punctually paid or duly provided
for, at Maturity will be paid to the person in whose name this Note (or one or more predecessor
Notes evidencing all or a portion of the same debt as this Note) is registered at the close of
business on the Maturity Date. Any such interest or principal not punctually paid or duly provided
for shall be payable as provided in this Note and in the Indenture.
Payment of principal of, and premium, if any, and interest on, this Note due at Maturity will
be made in immediately available funds upon presentation and surrender of this Note at the office
of the applicable Paying Agent (as described on the reverse hereof) maintained for that purpose,
and in accordance with the procedures of the depository or clearing system noted hereon;
provided, that this Note is presented to the Paying Agent in time for the Paying Agent to
make such payment in accordance with its normal procedures. Payments of interest on this Note
(other than at Maturity) will be made by wire transfer to such account as has been appropriately
designated to the Paying Agent by the person entitled to such payments.
The Issuer will pay any administrative costs imposed by any bank in making payments in
immediately available funds, but any tax, assessment or governmental charge imposed upon payments
hereunder, including, without limitation, any withholding tax, will be borne by the holder hereof.
4
Reference is made to the further provisions of this Note set forth on the reverse hereof and
in the Pricing Supplement attached hereto, which shall have the same effect as though fully set
forth at this place. In the event of any conflict between the provisions contained herein or on the
reverse hereof and the provisions contained in the Pricing Supplement attached hereto, the latter
shall control. References herein to this Note, hereof, herein and comparable terms shall
include the Pricing Supplement attached hereto.
Unless the certificate of authentication hereon has been executed by the Trustee (or other
authentication agent duly appointed in accordance with the Indenture), by manual signature of an
authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, Bank of America Corporation has caused this instrument to be duly executed
on its behalf, by manual or facsimile signature.
|
|
|
|
|
|
|
|
|
Dated: |
|
|
|
BANK OF AMERICA CORPORATION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[CORPORATE SEAL] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
ATTEST:
|
|
Name:
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: [Assistant] Secretary |
|
|
|
|
|
|
6
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
Dated: |
|
|
|
THE BANK OF NEW YORK MELLON TRUST |
|
|
|
|
|
|
COMPANY, N.A., as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
7
[ATTACH PRICING SUPPLEMENT]
8
[Reverse of Note]
BANK OF AMERICA CORPORATION
Medium-Term Subordinated Note, Series L
REGISTERED GLOBAL SUBORDINATED NOTE
SECTION 1. General. This Note is one of a duly authorized issue of subordinated notes of the
Issuer to be issued in one or more series under the Indenture dated January 1, 1995, as
supplemented from time to time (the Indenture), between Bank of America Corporation (the
Issuer) and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the
Trustee), and to which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer and the Trustee and
the London Paying Agent (as described below) thereunder and the holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The terms Trustee and
London Paying Agent shall include any additional or successor trustee or agents appointed in such
capacities by the Issuer in accordance with the terms of the Indenture.
This Note is also one of the Notes issued pursuant to the Prospectus Supplement dated April
21, 2009 to the Prospectus dated April 20, 2009, as either of such documents may be supplemented or
amended from time to time, or pursuant to any document that supersedes or replaces either of such
documents from time to time (referred to collectively herein as the
Prospectus), for the offer and
sale of the Issuers senior and subordinated medium-term notes, Series L (the Notes). The Notes
may have different issue and maturity dates, bear interest at different rates and vary in such
other ways as provided in the Indenture and described in the Prospectus. The specific terms of
each issuance of Notes will be described in a Pricing Supplement.
The Issuer has initially appointed the Trustee to act as the U.S. Issuing and Paying Agent,
Security Registrar and Transfer Agent for the Notes and The Bank of New York Mellon to act as the
London Paying Agent for certain of the Notes through its London branch (the London Paying Agent
and, with the Trustee, each, a Paying Agent). This Note may be presented or surrendered for
payment, and notices, designations or requests in respect of payments with respect to this Note may
be served, at the corporate trust office of the Trustee, located at 101 Barclay Street, New York,
New York, 10286, and/or at the office of the London Paying Agent located at One Canada Square,
London, E14 5AL, as applicable, or such other locations as may be specified by the applicable
Paying Agent and notified to the Issuer and the registered holder of this Note.
Unless specified otherwise in the Pricing Supplement, this Note will not be subject to a
sinking fund.
SECTION 2. Interest Provisions.
(a) Fixed Rate Notes. If this Note is designated as a Fixed Rate Note on the face
hereof, the Issuer will pay interest on the principal amount specified on the face of this Note (as
adjusted in accordance with Schedule 1 hereto) on each Interest Payment Date specified in the
Pricing Supplement and at Maturity, commencing on the first Interest Payment Date succeeding the
Original Issue Date specified above, except as provided on the face hereof, until payment of such
9
principal sum has been made or duly provided for. Unless otherwise specified in the Pricing
Supplement, if this Note has a Maturity Date of less than one year from the Original Issue Date,
interest on this Note will be paid only at Maturity.
Payments of interest hereon will include interest accrued from, and including, the most recent
Interest Payment Date to which interest on this Note (or any predecessor Note) has been paid or
duly provided for (or, unless otherwise specified in the Pricing Supplement, if no interest has
been paid or duly provided for, from, and including, the Original Issue Date) to, but excluding,
the relevant Interest Payment Date or Maturity Date, as the case may be.
Unless otherwise specified in the Pricing Supplement, if this Note has an original maturity
less than one year and is payable in U.S. dollars, interest (including payments for partial
periods) will be computed and paid on the basis of the actual number of days elapsed divided by
360. Unless otherwise specified in the Pricing Supplement, if this Note has an original maturity of
one year or more and is payable in U.S. dollars, interest (including payments for partial periods)
will be computed on the basis of a 360-day year of twelve 30-day months. Unless otherwise specified
in the Pricing Supplement, if this Note is denominated in a currency other than U.S. dollars or
Canadian dollars, interest will be computed on the basis of the Actual/Actual (ISMA) Fixed Day
Count Convention. Unless otherwise specified in the Pricing Supplement, if this Note is
denominated in Canadian dollars, interest will be calculated using Actual/Actual (Canadian Compound
Method).
Actual/Actual (ISMA) Fixed Day Count Convention means:
|
(a) |
|
in the case of fixed-rate notes where the number of days in the relevant period
from and including the most recent Interest Payment Date (or, if none, from, and
including, the interest commencement date, which unless specified otherwise in the
Pricing Supplement shall be the Original Issue Date) to, but excluding, the relevant
payment date (referred to as the accrual period) is equal to or shorter than the
determination period (as defined below) during which the accrual period ends, the number
of days in the accrual period divided by the product of (1) the number of days in that
determination period and (2) the number of determination periods that would occur in one
calendar year, assuming interest was to be payable in respect of the whole of that year;
or |
|
|
(b) |
|
in the case of fixed-rate notes where the accrual period is longer than the
determination period during which the accrual period ends, the sum of: |
(1) the number of days in that accrual period falling in the determination period in
which the accrual period begins divided by the product of (x) the number of days in such
determination period and (y) the number of determination periods that would occur in one
calendar year, assuming interest was to be payable in respect of the whole of that year;
and
(2) the number of days in that accrual period falling in the next determination period
divided by the product of (x) the number of days in such determination period and (y) the
number of determination periods that would occur in one calendar year, assuming interest
was to be payable in respect of the whole of that year.
Determination period means the period from, and including, a determination date to, but
excluding, the next determination date (including, where either the interest commencement date or
10
the final Interest Payment Date is not a determination date, the period commencing on the
first determination date prior to, and ending on the first determination date falling after, such
date).
Determination date means each date specified in the Pricing Supplement or, if none is
specified, each Interest Payment Date.
Actual/Actual (Canadian Compound Method) means, when calculating interest due on any
Interest Payment Date for a full semi-annual interest period, the day count fraction will be
30/360, and, when calculating interest for any interest period that is shorter than a full
semi-annual interest period, the day count fraction will be Actual/365 (Fixed).
Unless otherwise specified in the Pricing Supplement, if any Interest Payment Date or the
Maturity Date of this Note falls on a day that is not a Business Day, the related payment of
principal, premium, if any, or interest on this Note will be made on the next succeeding Business
Day with the same force and effect as if made on the date such payments were due, and no additional
interest will accrue in respect of the amount so payable for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be.
(b) Floating Rate Notes. If this Note is designated as a Floating Rate Note on face
hereof, the Issuer will pay interest on the principal amount specified on the face of this Note (as
adjusted in accordance with Schedule 1 hereto) on each Interest Payment Date specified in the
Pricing Supplement and at Maturity, commencing on the first Interest Payment Date succeeding the
Original Issue Date specified on the face hereof, unless the Original Issue Date occurs between a
Regular Record Date and the next Interest Payment Date, in which case interest shall be payable
commencing on the Interest Payment Date following the next Regular Record Date, at a rate per annum
determined in accordance with the provisions hereof and the Pricing Supplement, until payment of
such principal sum has been made or duly provided for. Unless otherwise specified in the Pricing
Supplement, if this Note has a Maturity Date of less than one year from the Original Issue Date,
interest on this Note will be paid only at Maturity.
Payments of interest hereon will include interest accrued from, and including, the most recent
Interest Payment Date to which interest on this Note (or any predecessor Note) has been paid or
duly provided for (or, unless otherwise provided in the Pricing Supplement, if no interest has been
paid or duly provided for, from and including the Original Issue Date) to, but excluding, the
relevant Interest Payment Date or Maturity Date, as the case may be (each such period, an Interest
Period).
As set forth in the Pricing Supplement, this Note may have either or both of the following:
(i) a maximum numerical interest rate limitation, or ceiling, on the rate at which interest may
accrue during any Interest Period (Maximum Interest Rate); or (ii) a minimum numerical interest
rate limitation, or floor, on the rate at which interest may accrue during any interest period
(Minimum Interest Rate); provided, however, that the interest rate on this Note
will in no event be higher than the maximum rate permitted by applicable law.
The Base Rate (as defined herein) with respect to this Note may be (i) the federal funds rate,
(ii) the London interbank offered rate, or LIBOR, (iii) the Euro-zone interbank offered rate, or
EURIBOR, (iv) the prime rate, (v) the treasury
rate or (vi) such other rate as is described in the
Pricing Supplement.
11
Except as described below, this Note will bear interest at the rate determined by reference to
the appropriate interest rate basis (the Base Rate) and Index Maturity, each as specified in the
Pricing Supplement, (i) plus or minus the Spread, if any, specified in the Pricing Supplement
and/or (ii) multiplied by the Spread Multiplier, if any, specified in the Pricing Supplement. The
interest rate in effect during an Interest Period will be the rate determined by the Calculation
Agent specified in the Pricing Supplement on the calculation date by reference to the Interest
Determination Date (as described below).
The calculation date pertaining to any Interest Determination Date will be the date by which
the Calculation Agent specified in the Pricing Supplement computes the amount of interest owed on
this Note for the related Interest Period. Unless otherwise specified in the Pricing Supplement,
the calculation date will be the earlier of (a) the tenth calendar day after the related Interest
Determination Date or, if that date is not a Business Day, the next succeeding Business Day; or (b)
the Business Day immediately preceding the applicable Interest Payment Date or the Stated Maturity
Date or the date of redemption or the date of prepayment, as the case may be.
The interest rate in effect on each day shall be (a) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date pertaining to such Interest
Reset Date or (b) if such day is not an Interest Reset Date, the interest rate determined as of the
Interest Determination Date pertaining to the immediately preceding Interest Reset Date. Unless
otherwise specified herein or in the Pricing Supplement, if any Interest Reset Date specified in
the Pricing Supplement (including the Initial Interest Reset Date, as specified in the Pricing
Supplement) falls on a day that is not a Business Day, the Interest Reset Date will be postponed to
the next day that is a Business Day, except that, unless otherwise specified in the Pricing
Supplement, in the case of a LIBOR note or a EURIBOR note, if the next Business Day is in the next
succeeding calendar month, the Interest Reset Date will be the immediately preceding Business Day.
The Interest Reset Dates are subject to adjustment as described below.
Unless otherwise specified in the Pricing Supplement: (i) the Interest Determination Date
with respect to any Note that has as its Base Rate the federal funds rate or the prime rate will be
the Business Day immediately preceding the related Interest Reset Date; (ii) the Interest
Determination Date with respect to any Note that has LIBOR as its Base Rate will be the second
London Banking Day preceding the related Interest Reset Date, unless the Index Currency specified
in the Pricing Supplement is pounds sterling, in which case the Interest Determination Date will be
the Interest Reset Date; (iii) the Interest Determination Date with respect to any Note that has
EURIBOR as its Base Rate will be the second TARGET Settlement Date (as defined below) preceding the
related Interest Reset Date; and (iv) the Interest Determination Date with respect to any Note
that has as its Base Rate the treasury rate will be the day of the week in which the related
Interest Reset Date falls on which Treasury bills of the Index Maturity specified in the Pricing
Supplement normally would be auctioned; provided, however, that if an auction is
held on the Friday of the week preceding the related Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that if
an auction is held on any Interest Reset Date then the Interest Reset Date shall instead be the
first Business Day following such auction.
For a Note whose interest rate is determined by reference to two or more Base Rates, unless
otherwise specified in the Pricing Supplement, the Interest Determination Date shall be the most
recent Business Day that is at least two Business Days prior to the applicable Interest Reset Date
for the Note on which each Base Rate is determinable.
12
Unless otherwise specified in the Pricing Supplement, if any Interest Payment Date falls on a
day that is not a Business Day, the related payment of interest will be made on the next succeeding
Business Day. However, unless otherwise specified in the Pricing Supplement, if this Note has as
its Base Rate LIBOR or EURIBOR, as described below, if an Interest Payment Date falls on a date
that is not a Business Day, and the next Business Day is in the next calendar month, the Interest
Payment Date will be the immediately preceding Business Day. In each such case, except for the
Interest Payment Date falling on the Maturity Date, the Interest Periods and the Interest Reset
Dates will be adjusted accordingly to calculate the amount of interest payable on this Note. Unless
otherwise specified in the Pricing Supplement, if the Maturity Date of this Note falls on a day
that is not a Business Day, the related payment of principal of, or premium, if any, or interest
on, this Note will be made on the next succeeding Business Day with the same force and effect as if
made on the date such payments were due, and no additional interest will accrue in respect of the
amount so payable for the period from and after the Maturity Date.
Accrued interest on this Note is calculated by multiplying the principal amount of the Note by
an accrued interest factor. The accrued interest factor is the sum of the interest factors
calculated for each day in the period for which accrued interest is being calculated. Unless
otherwise indicated in the Pricing Supplement, the daily interest factor will be computed on the
basis of a 360-day year of twelve 30-day months if the Day Count Convention specified in the
Pricing Supplement is 30/360 for the period specified thereunder, or on the basis of the actual
number of days in the Interest Period divided by 360 if the Day Count Convention specified in the
Pricing Supplement is Actual/360 for the period specified thereunder, or on the basis of the
actual number of days in the Interest Period divided by 365, or in the case of an Interest Payment
Date falling in a leap year, 366, if the Day Count Convention specified in the Pricing Supplement
is Actual/Actual for the period specified thereunder. If no Day Count Convention is specified in
the Pricing Supplement, the daily interest factor will be computed and interest will be paid
(including payments for partial periods) as follows: (i) for Notes that have as a Base Rate the
federal funds rate, LIBOR, EURIBOR, the prime rate, or any other rate other than the treasury rate,
as if Actual/360 had been specified in the Pricing Supplement; (ii) for Notes that have the
treasury rate as a Base Rate, as if Actual/Actual had been specified in the Pricing Supplement;
and (iii) for Notes that are denominated in Canadian dollars, unless otherwise specified in the
Pricing Supplement, as if Actual/365 had been specified in the Pricing Supplement.
All amounts used in or resulting from any calculation on this Note will be rounded to the
nearest cent, if the currency specified on the face hereof (referred to herein as the Specified
Currency) is U.S. dollars, or to the nearest corresponding hundredth of a unit, if the Specified
Currency is other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of
a unit or more being rounded upward. Unless otherwise specified in the Pricing Supplement, all
percentages resulting from any calculation are rounded to the nearest one hundred-thousandth of a
percent, with five one-millionths of a percentage point rounded
upward. For example, 9.876545% (or .09876545) will be rounded to 9.87655% (or .0987655).
Notwithstanding the calculations determined as specified below, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if
any, specified in the Pricing Supplement.
13
The Calculation Agent shall calculate the interest rate hereon in accordance with the
procedures described below on or before each calculation date. At the request of the registered
holder hereof, the Calculation Agent will provide to such holder the interest rate hereon then in
effect and, if determined, the interest rate which will become effective as of the next Interest
Reset Date.
Determination of LIBOR. LIBOR for any Interest Determination Date will be the
arithmetic mean of the offered rates for deposits in the relevant Index Currency having the Index
Maturity described in the Pricing Supplement, commencing on the related Interest Reset Date, as the
rates appear on the LIBOR Reuters page designated in the Pricing Supplement as of 11:00 A.M.,
London time, on that Interest Determination Date, if at least two offered rates appear on the
designated LIBOR page, except that, if the designated LIBOR Reuters page only provides for a single
rate, that single rate will be used.
If fewer than two of the rates described above appears on that page or no rate appears on any
page on which only one rate normally appears, then the Calculation Agent will determine LIBOR as
follows:
|
|
|
The Calculation Agent will select four major banks in the London interbank market,
after consultation with the Issuer. On the Interest Determination Date, those four
banks will be requested to provide their offered quotations for deposits in the
relevant Index Currency having an Index Maturity specified in the Pricing Supplement
commencing on the Interest Reset Date to prime banks in the London interbank market at
approximately 11:00 A.M., London time. |
|
|
|
|
If at least two quotations are provided, the Calculation Agent will determine LIBOR
as the arithmetic mean of those quotations. |
|
|
|
|
If fewer than two quotations are provided, the Calculation Agent will select, after
consultation with the Issuer, three major banks in New York City. On the Interest
Determination Date, those three banks will be requested to provide their offered
quotations for loans in the relevant Index Currency having an Index Maturity specified
in the Pricing Supplement commencing on the Interest Reset Date to leading European
banks at approximately 11:00 A.M., New York time. The Calculation Agent will determine
LIBOR as the average of those quotations. |
|
|
|
|
If fewer than three New York City banks selected by the Calculation Agent are
quoting rates, LIBOR for that interest period will remain LIBOR then in effect on the
Interest Determination Date. |
Determination of EURIBOR. EURIBOR means, for any Interest Determination Date, the rate
for deposits in euro as sponsored, calculated, and published jointly by the European Banking
Federation and ACIThe Financial Market Association, or any company established by the joint
sponsors for purposes of compiling and publishing those rates, having the Index Maturity specified
in the Pricing Supplement, as that rate appears on the display on Reuters, or any successor
service, on page EURIBOR01 or any other page as may replace such page (Reuters Page EURIBOR01),
as of 11:00 A.M., Brussels time.
14
The following procedures will be followed if EURIBOR cannot be determined as described above:
|
|
|
If no offered rate appears on Reuters Page EURIBOR01 on an Interest Determination
Date at approximately 11:00 A.M., Brussels time, then the Calculation Agent, after
consultation with the Issuer, will select four major banks in the Euro-zone interbank
market to provide a quotation of the rate at which deposits in euro having the Index
Maturity specified in the Pricing Supplement are offered to prime banks in the
Euro-zone interbank market, and in a principal amount not less than the equivalent of
1,000,000, that is representative of a single transaction in euro in that market at
that time. If at least two quotations are provided, EURIBOR will be the average of
those quotations. |
|
|
|
|
If fewer than two quotations are provided, then the Calculation Agent, after
consultation with the Issuer, will select four major banks in the Euro-zone interbank
market to provide a quotation of the rate offered by them, at approximately 11:00 A.M.,
Brussels time, on the Interest Determination Date, for loans in euro to prime banks in
the Euro-zone interbank market for a period of time equivalent to the Index Maturity
specified in the Pricing Supplement commencing on that Interest Reset Date and in a
principal amount not less than the equivalent of 1,000,000, that is representative of
a single transaction in euro in that market at that time. If at least three quotations
are provided, EURIBOR will be the average of those quotations. |
|
|
|
|
If three quotations are not provided, EURIBOR for that Interest Determination Date
will be equal to EURIBOR for the immediately preceding interest period. |
Euro-zone means the region comprising Member States of the European Union that have adopted
the euro as their single currency in accordance with the Treaty establishing European Community, as
amended.
Determination of Treasury Rate. The treasury rate for any Interest Determination
Date is the rate set at the auction of direct obligations of the United States (Treasury bills)
having the Index Maturity described in the Pricing Supplement, as specified under the caption
Investment Rate on the display on Reuters, or any successor service, on page USAUCTION 10/11 or
any other page as may replace such page.
The following procedures will be followed if the treasury rate cannot be determined as
described above:
|
|
|
If the rate is not displayed on Reuters on page USAUCTION 10/11 or any other page as
may replace such page by 3:00 P.M., New York City time, on the related calculation
date, the treasury rate will be the rate of Treasury bills as published in H.15 Daily
Update, or another recognized electronic source for the purpose of displaying the
applicable rate, under the caption U.S. Government Securities/Treasury Bills/Auction
High. |
|
|
|
|
If the alternative rate described in the paragraph immediately above is not
published by 3:00 P.M., New York City time, on the related calculation date, the
treasury rate will be the bond equivalent yield, as defined below, of the auction rate
of the applicable Treasury bills as announced by the U.S. Department of the Treasury. |
15
|
|
|
If the alternative rate described in the paragraph immediately above is not
announced by the U.S. Department of the Treasury, or if the auction is not held, the
treasury rate will be the bond equivalent yield of the rate on the particular Interest
Determination Date of the applicable Treasury bills as published in H.15(519) under the
caption U.S. Government Securities/Treasury Bills/Secondary Market. |
|
|
|
|
If the alternative rate described in the paragraph immediately above is not
published by 3:00 P.M., New York City time, on the related calculation date, the
treasury rate will be the rate on the particular Interest Determination Date of the
applicable Treasury bills as published in H.15 Daily Update, or another recognized
electronic source used for the purpose of displaying the applicable rate, under the
caption U.S. Government Securities/Treasury Bills/Secondary Market. |
|
|
|
|
If the alternative rate described in the paragraph immediately above is not
published by 3:00 P.M., New York City time, on the related calculation date, the
treasury rate will be the rate on the particular Interest Determination Date calculated
by the Calculation Agent as the bond equivalent yield of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time, on that
Interest Determination Date, of three primary U.S. government securities dealers,
selected by the Calculation Agent, after consultation with the Issuer, for the issue of
Treasury bills with a remaining maturity closest to the particular Index Maturity. |
|
|
|
|
If the dealers selected by the Calculation Agent are not quoting as described in the
paragraph immediately above, the treasury rate will be the treasury rate in effect on
the particular Interest Determination Date. |
The bond equivalent will be calculated using the following formula:
|
|
|
|
|
Bond Equivalent Yield =
|
|
D x N
|
|
x 100 |
|
|
|
|
|
|
360 (D x M) |
|
where D refers to the applicable annual rate for Treasury bills quoted on a bank discount basis
and expressed as a decimal, N refers to 365 or 366, as the case may be, and M refers to the
actual number of days in the applicable interest period.
H.15(519) means the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board.
H.15 Daily Update means the daily update of H.15(519), available through the website of the
Federal Reserve Board at www.federalreserve.gov/releases/h15/update, or any successor site or
publication.
Determination of Federal Funds Rate. The federal funds rate for any Interest
Determination Date will be as follows:
|
|
|
if Federal Funds (Effective) Rate is specified in the Pricing Supplement, the
federal funds rate will be the rate on that Interest Determination Date for U.S. dollar
federal funds, as published in H.15(519) under the heading Federal Funds (Effective)
and displayed on Reuters, or any successor service, on page FEDFUNDS1 or any other page
as may replace the specified page on that service (Reuters Page FEDFUNDS1), or if
such rate is not published in H.15(519) by 3:00 P.M., New York City time, on the
|
16
related calculation date or does not appear on Reuters Page FEDFUNDS1, the federal funds
rate will be the rate on that Interest Determination Date, as published in H.15 Daily
Update, or any other recognized electronic source for the purposes of displaying the
applicable rate, under the caption Federal Funds (Effective). If the alternate rate
described in the preceding sentence is not published in H.15 Daily Update, or other
recognized electronic source for the purpose of displaying the applicable rate, by 3:00
P.M., New York City time, on the related calculation date, then the Calculation Agent
will determine the federal funds rate to be the average of the rates for the last
transaction in overnight U.S. dollar federal funds, quoted prior to 9:00 A.M., New York
City time, on the business day following that Interest Determination Date, by each of
three leading brokers of U.S. dollar federal funds transactions in New York City,
selected by the Calculation Agent, after consultation with the Issuer; provided,
however, if fewer than three brokers selected by the Calculation Agent are
quoting as described above, the federal funds rate will be the federal funds rate then
in effect on that Interest Determination Date.
|
|
|
if Federal Funds Open Rate is specified in the Pricing Supplement, the federal
funds rate will be the rate on that Interest Determination Date for U.S. dollar federal
funds transactions among member of the U.S. Federal Reserve System arranged by federal
funds brokers on such day, under the heading Federal Funds for the applicable Index
Maturity and opposite the caption Open and displayed on Reuters, or any successor
service, on page 5 or any other page as may replace the specified page on that service
(Reuters Page 5), or if such rate does not appear on Reuters Page 5 by 3:00 P.M., New
York City time, on the related calculation date, the federal funds rate will be the
rate on that Interest Determination Date displayed on FFPREBON Index page on Bloomberg
L.P. (Bloomberg), which is the Fed Funds Opening Rate as reported by Prebon Yamane
(or a successor) on Bloomberg. If the alternate rate described in the preceding
sentence is not displayed on FFPREBON Index page on Bloomberg, or any other recognized
electronic source for the purpose of displaying the applicable rate, by 3:00 P.M., New
York City time, on the related calculation date, then the Calculation Agent will
determine the federal funds rate to be the average of the rates for the last
transaction in overnight U.S. dollar federal funds, quoted prior to 9:00 A.M., New York
City time, on that Interest Determination Date, by each of three leading brokers of
U.S. dollar federal funds transactions in New York City, selected by the Calculation
Agent, after consultation with the Issuer; provided, however, if fewer
than three brokers selected by the Calculation Agent are quoting as described above,
the federal funds rate will be the federal funds rate then in effect on that Interest
Determination Date. |
|
|
|
|
if Federal Funds Target Rate is specified in the Pricing Supplement, the federal
funds rate will be the rate on that Interest Determination Date for U.S. dollar federal
funds displayed on the FDTR Index page on Bloomberg. If such rate does not appear on
the FDTR Index page on Bloomberg by 3:00 P.M., New York City time, on the calculation
date, the federal funds rate for such Interest Determination Date will be the rate for
that day appearing on Reuters, or any successor service, on page USFFTARGET= or any
other page as may replace the specified page on that service (Reuters Page
USFFTARGET=). If such rate does not appear on the FDTR Index page on Bloomberg or is
not displayed on Reuters Page USFFTARGET= by 3:00 P.M., New York City time, on the
related calculation date, then the Calculation Agent will
|
17
determine the federal funds rate to be the average of the rates for the last transaction
in overnight U.S. dollar federal funds, quoted prior to 9:00 A.M., New York City time,
on that Interest Determination Date, by each of three leading brokers of U.S. dollar
federal funds transactions in New York City, selected by the Calculation Agent, after
consultation with the Issuer; provided, however, if fewer than three
brokers selected by the Calculation Agent are quoting as described above, the federal
funds rate will be the federal funds rate then in effect on that Interest Determination
Date.
Determination of Prime Rate. The prime rate for any Interest Determination Date is
the prime rate or base lending rate on that date, as published in H.15(519) prior to 3:00 P.M., New
York City time, on the related calculation date, under the caption Bank Prime Loan.
The following procedures will be followed if the prime rate cannot be determined as described
above:
|
|
|
If the rate is not published in H.15(519) by 3:00 P.M., New York City time, on the
related calculation date, then the prime rate will be the rate as published in H.15
Daily Update, or any other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption Bank Prime Loan. |
|
|
|
|
If the alternative rate described above is not published in H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on the related
calculation date, then the Calculation Agent will determine the prime rate to be the
arithmetic mean of the rates of interest publicly announced by each bank that appears
on the Reuters screen US PRIME 1, as defined below, as that banks prime rate or base
lending rate as in effect as of 11:00 A.M., New York City time, on that Interest
Determination Date. |
|
|
|
|
If fewer than four rates appear on the Reuters screen US PRIME 1 for that Interest
Determination Date, by 3:00 P.M., New York City time, then the Calculation Agent will
determine the prime rate to be the average of the prime rates or base lending rates
furnished in New York City by three substitute banks or trust companies (all organized
under the laws of the United States or any of its states and having total equity
capital of at least U.S.$500,000,000) selected by the Calculation Agent, after
consultation with the Issuer. |
|
|
|
|
If the banks selected by the Calculation Agent are not quoting as described above,
the prime rate will remain the prime rate then in effect on the Interest Determination
Date. |
Reuters screen US PRIME 1 means the display designated as page US PRIME 1 on the Reuters
Monitor Money Rates Service (or any other page as may replace the US PRIME 1 page on that service
for the purpose of displaying prime rates or base lending rates of major U.S. banks).
(c) Floating Rate/Fixed Rate Notes. If this Note is designated as a Floating
Rate/Fixed Rate Note on the face hereof, this Note may bear interest at a fixed rate for a
specified period and at a floating rate for a specified period, in each case calculated as set
forth in (a) and (b) above, as applicable, and in the Pricing Supplement.
SECTION 3. Amortizing Notes. If this Note is designated as an Amortizing Note on the face
hereof, the Issuer will make payments combining principal and interest on the dates and in the
amounts set forth in the table included in the Pricing Supplement. If this Note is an Amortizing
18
Note, payments made hereon will be applied first to interest due and payable on each such
payment date and then to the reduction of the Outstanding Face Amount. The term Outstanding Face
Amount means, at any time, the amount of unpaid principal hereof at such time.
SECTION 4. Optional Redemption. If so specified in the Pricing Supplement, this Note may be
redeemed at the option of the Issuer on any Interest Payment Date (unless otherwise specified in
the Pricing Supplement) on and after the Initial Redemption Date, if any, specified in the Pricing
Supplement (each, a Redemption Date). IF NO INITIAL REDEMPTION DATE IS SET FORTH IN THE PRICING
SUPPLEMENT, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE ISSUER PRIOR TO THE STATED MATURITY
DATE, EXCEPT AS PROVIDED BELOW IN THE EVENT THAT ANY ADDITIONAL AMOUNTS (AS DEFINED BELOW) ARE
REQUIRED TO BE PAID BY THE ISSUER WITH RESPECT TO THIS NOTE. If so specified in the Pricing
Supplement, on and after the Initial Redemption Date, if any, this Note may be redeemed at any time
in whole or from time to time in part at the option of the Issuer at the Redemption Price (as
defined below), together with accrued and unpaid interest hereon payable at the applicable rate or
rates borne by this Note to, but excluding, the Redemption Date, on notice given in accordance with
the Indenture not less than 30 nor more than 60 calendar days (unless otherwise specified in the
Pricing Supplement) prior to the Redemption Date. The notice will take the form of a certificate
signed by the Issuer specifying:
|
|
|
the date fixed for redemption; |
|
|
|
|
the redemption price; |
|
|
|
|
the securities identification number(s) of the Notes to be redeemed; |
|
|
|
|
the amount to be redeemed, if less than all of the series of Notes is to be redeemed; |
|
|
|
|
the place of payment for the Notes to be redeemed; and |
|
|
|
|
that on and after the date fixed for redemption, interest will cease to accrue on the
Notes to be redeemed. |
So long as a depository is the record holder of this Note, the Issuer will deliver any redemption
notice only to that depository.
In the event of redemption of this Note in part only, the unredeemed portion hereof shall be
at least the minimum authorized denomination (the Authorized Denomination) specified in the
Pricing Supplement, or if no such Authorized Denomination is so specified, U.S. $1,000 or its
equivalent in the Specified Currency. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the registered holder hereof
upon the surrender of this Note or, where applicable, an appropriate notation will be made on
Schedule 1 attached hereto. Unless otherwise specified above, if less than all of the Notes with
like tenor and terms are to be redeemed, the Trustee shall select, pro rata or by lot or in such
other manner as the Trustee shall deem fair and appropriate, the Notes to be redeemed. If this Note
is redeemable at the option of the Issuer, then if so specified in the Pricing Supplement, the
Redemption Price initially shall be the Initial Redemption Percentage specified in the Pricing
Supplement of the principal amount of this Note to be redeemed, which shall be 100% of the
principal amount of the Note to be redeemed, unless otherwise specified in the Pricing Supplement.
From and after any Redemption Date, if monies for the redemption of this Note (or portion
hereof) shall have been made available for redemption on such Redemption Date, this Note (or such
19
portion hereof) shall cease to bear interest and the holders only right with respect to this
Note (or such portion hereof) shall be to receive payment of the principal amount of the Note being
redeemed (or, if this is an Original Issue Discount Note as specified in the Pricing Supplement,
the amortized face amount hereof) and, if appropriate, all unpaid interest accrued to such
redemption date.
SECTION 5. Optional Repayment. If so specified in the Pricing Supplement, this Note will be
repayable prior to the Stated Maturity Date at the option of the registered holder on the Optional
Repayment Date(s), if any, specified in the Pricing Supplement. IF NO OPTIONAL REPAYMENT DATES ARE
SET FORTH IN THE PRICING SUPPLEMENT, THIS NOTE MAY NOT BE SO REPAID AT THE OPTION OF THE HOLDER
HEREOF PRIOR TO THE STATED MATURITY DATE. Unless otherwise specified in the Pricing Supplement, on
any Optional Repayment Date, this Note shall be repayable in whole or in part at the option of the
holder hereof at a repayment price equal to 100% of the principal amount to be repaid, together
with accrued and unpaid interest hereon payable at the applicable rate or rates borne by this Note
to, but excluding, the date of repayment; provided, however, that, in the event of
repayment of this Note in part only, the unrepaid portion hereof shall be at least the minimum
Authorized Denomination specified in the Pricing Supplement, or if no such Authorized Denomination
is so specified, U.S. $1,000 or its equivalent in the Specified Currency. For this Note to be
repaid in whole or in part at the option of the holder hereof on any Optional Repayment Date, this
Note must be received, with the form attached hereto entitled Option to Elect Repayment duly
completed, by the applicable Paying Agent (as appropriate in accordance with such attached form),
at the applicable address set forth on such form or at such other address which the Issuer shall
from time to time notify the holders of the Notes not less than 30 nor more than 60 calendar days
prior to such holders Optional Repayment Date. In the event of repayment of this Note in part
only, a new Note for the unrepaid portion hereof shall be issued in the name of the registered
holder hereof upon the surrender hereof or, where applicable, an appropriate notation will be made
on Schedule 1 attached hereto. Exercise of such repayment option by the holder hereof shall be
irrevocable.
From and after any Optional Repayment Date, if monies for the repayment of this Note (or
portion hereof) shall have been made available for repayment on such Optional Repayment Date, this
Note (or such portion hereof) shall cease to bear interest and the holders only right with respect
to this Note (or such portion hereof) shall be to receive payment of the principal amount of the
Note being repaid (or, if this is an Original Issue Discount Note as specified in the Pricing
Supplement, the amortized face amount hereof) and, if appropriate, all unpaid interest accrued to
such Optional Repayment Date.
SECTION 6. Additional Amounts. All payments of principal, premium, if any, and interest with
respect to this Note will be made without withholding or deduction at source for, or on account of,
any present or future taxes, fees, duties, assessments, or governmental charges of whatever nature
imposed or levied by the United States or any political subdivision or taxing authority thereof or
therein, except to the extent such withholding or deduction is required by (i) the laws (or any
regulations or rulings promulgated thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (ii) an official position regarding the application,
administration, interpretation, or enforcement of any such laws, regulations, or rulings
(including, without limitation, a holding by a court of competent jurisdiction or by a taxing
authority in the United States or any political subdivision thereof). If so specified in the
Pricing Supplement, if a
20
withholding or deduction at source is required, the Issuer will, subject to the exceptions and
limitations set forth below, pay to the beneficial owner of this Note that is a non-U.S. person
(as defined below) additional amounts (Additional Amounts) to ensure that every net payment on
this Note will not be less, due to the payment of U.S. withholding tax, than the amount then
otherwise due and payable. For this purpose, a net payment on this Note means a payment by the
Issuer or any Paying Agent, including payment of principal and interest, after deduction for any
present or future tax, assessment, or other governmental charge of the United States (other than a
territory or possession). These Additional Amounts will constitute additional interest on this
Note. For this purpose, U.S. withholding tax means a withholding tax of the United States, other
than a territory or possession.
However, notwithstanding the Issuers obligation, if so specified in the Pricing Supplement,
to pay Additional Amounts, the Issuer will not be required to pay Additional Amounts in any of the
circumstances described in items (1) through (13) below, unless otherwise specified in the Pricing
Supplement.
(1) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the beneficial owner of this Note:
|
|
|
having a relationship with the United States as a citizen, resident, or
otherwise; |
|
|
|
|
having had such a relationship in the past; or |
|
|
|
|
being considered as having had such a relationship. |
(2) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the beneficial owner of this Note:
|
|
|
being treated as present in or engaged in a trade or business in the United
States; |
|
|
|
|
being treated as having been present in or engaged in a trade or business in the
United States in the past; |
|
|
|
|
having or having had a permanent establishment in the United States; or |
|
|
|
|
having or having had a qualified business unit which has the U.S. dollar as its
functional currency. |
(3) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the beneficial owner of this Note being or having been a:
|
|
|
personal holding company; |
|
|
|
|
foreign personal holding company; |
|
|
|
|
private foundation or other tax-exempt organization; |
|
|
|
|
passive foreign investment company; |
21
|
|
|
controlled foreign corporation; or |
|
|
|
|
corporation which has accumulated earnings to avoid U.S. federal income tax. |
(4) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the beneficial owner of this Note owning or having owned, actually or constructively, 10%
or more of the total combined voting power of all classes of the Issuers stock entitled to
vote.
(5) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the beneficial owner of this Note being a bank extending credit under a loan agreement
entered into in the ordinary course of business.
For purposes of items (1) through (5) above, beneficial owner includes, without
limitation, a holder and a fiduciary, settlor, partner, member, shareholder, or beneficiary of
the holder if the holder is an estate, trust, partnership, limited liability company,
corporation, or other entity, or a person holding a power over an estate or trust administered
by a fiduciary holder.
(6) Additional Amounts will not be payable to any beneficial owner of this Note that is:
|
|
|
a fiduciary; |
|
|
|
|
a partnership; |
|
|
|
|
a limited liability company; |
|
|
|
|
another fiscally transparent entity; or |
|
|
|
|
not the sole beneficial owner of this Note or any portion of this Note. |
However, this exception to the obligation to pay Additional Amounts will apply only to
the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner,
partner, or member of the partnership, limited liability company, or other fiscally
transparent entity, would not have been entitled to the payment of an additional amount had
the beneficiary, settlor, beneficial owner, partner, or member received directly its
beneficial or distributive share of the payment.
(7) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld solely by reason
of the failure of the beneficial owner of this Note or any other person to comply with
applicable certification, identification, documentation, or other information reporting
requirements. This exception to the obligation to pay Additional Amounts will apply only if
compliance with such requirements is required as a precondition to exemption from such tax,
assessment, or other governmental charge by statute or regulation of the United States or by
an applicable income tax treaty to which the United States is a party.
22
(8) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is collected or imposed by any method
other than by withholding from a payment on this Note by the Issuer or any Paying Agent.
(9) Additional Amounts will not be payable if a payment on this Note is reduced as a result of
any tax, assessment, or other governmental charge that is imposed or withheld by reason of a
change in law, regulation, or administrative or judicial interpretation that becomes effective
more than 15 days after the payment becomes due or is duly provided for, whichever occurs
later.
(10) Additional Amounts will not be payable if a payment on this Note is reduced as a result
of any tax, assessment, or other governmental charge that is imposed or withheld by reason of
the presentation by the beneficial owner of this Note for payment more than 30 days after the
date on which such payment becomes due or is duly provided for, whichever occurs later.
(11) Additional Amounts will not be payable if a payment on this Note is reduced as a result
of any:
|
|
|
estate tax; |
|
|
|
|
inheritance tax; |
|
|
|
|
gift tax; |
|
|
|
|
sales tax; |
|
|
|
|
excise tax; |
|
|
|
|
transfer tax; |
|
|
|
|
wealth tax; |
|
|
|
|
personal property tax; or |
|
|
|
|
any similar tax, assessment, or other governmental charge. |
(12) Additional Amounts will not be payable if a payment on this Note is reduced as a result
of any tax, assessment, or other governmental charge required to be withheld by any Paying
Agent from a payment of principal or interest on the this Note if such payment can be made
without such withholding by any other Paying Agent.
(13) Additional Amounts will not be payable if a payment on this Note is reduced as a result
of any combination of items (1) through (12) above.
Except as specifically provided in this section or in the Pricing Supplement, the Issuer will not
be required to make any payment of any tax, assessment, or other governmental charge with respect
to this Note imposed by any government, political subdivision, or taxing authority of that
government.
23
For purposes of determining whether the payment of Additional Amounts is required, the term
U.S. person means any individual who is a citizen or resident of the United States; any
corporation, partnership, or other entity created or organized in or under the laws of the United
States; any estate if the income of such estate falls within the federal income tax jurisdiction of
the United States regardless of the source of that income; and any trust if a U.S. court is able to
exercise primary supervision over its administration and one or more U.S. persons have the
authority to control all of the substantial decisions of the trust. Additionally, for this purpose,
non-U.S. person means a person who is not a U.S. person, and United States means the United
States of America, including each state of the United States and the District of Columbia, its
territories, its possessions, and other areas within its jurisdiction.
SECTION 7. Redemption for Tax Reasons. If so specified in the Pricing Supplement, the Issuer
may redeem this Note in whole, but not in part, at any time (in the case of Notes other than
Floating Rate Notes) or on any Interest Payment Date (in the case of Floating Rate Notes), after
giving not less than 30 nor more than 60 calendar days notice to the applicable Paying Agent and
to the registered holder of this Note, if the Issuer has or will become obligated to pay Additional
Amounts, as described above, as a result of any change in, or amendment to, the laws or regulations
of the United States or any political subdivision or any authority of the United States having
power to tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after the date of the Pricing
Supplement, and the Issuer cannot avoid such obligation by taking reasonable measures available to
it.
Before the Issuer delivers or publishes any notice of redemption for tax reasons, it will
deliver to the Trustee and any other applicable Paying Agent an officers certificate complying
with the applicable provisions of the Indenture.
Unless otherwise specified in the Pricing Supplement, any Note redeemed for tax reasons will
be redeemed at 100% of its principal amount (or, in the case of an Original Issue Discount Note,
the amortized face amount hereof determined as of the date of redemption), together with any
interest accrued up to, but excluding, the redemption date.
From and after any redemption date, if monies for the redemption of this Note shall have been
made available for redemption on such redemption date, this Note shall cease to bear interest and
the holders only right with respect to this Note shall be to receive payment of the principal
amount of the Note (or, if this is an Original Issue Discount Note as specified in the Pricing
Supplement, the amortized face amount hereof) and, if appropriate, all unpaid interest accrued to
such redemption date.
SECTION 8. Modification and Waivers. The Indenture permits, with certain exceptions as
therein provided, the amendment of the Indenture and the modification of the rights and obligations
of the Issuer and the rights of the holders of the Notes under the Indenture at any time by the
Issuer with the consent of the holders of not less than 662/3% in aggregate principal amount of the
series of Notes of which this Note is a part then outstanding and all other Securities (as defined
in the Indenture) then outstanding under the Indenture and affected by such amendment and
modification. The Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the series of Notes of which this Note is a part then outstanding and
all other Securities then outstanding under the Indenture and affected thereby, on behalf of the
holders of all such Securities, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the holder
24
of this Note shall be conclusive and binding upon such holder and upon all future holders of
this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The
determination of whether particular Securities are outstanding will be made in accordance with
the Indenture.
Any action by the holder of this Note shall bind all future holders of this Note, and of any
Note issued in exchange or substitution hereof or in place hereof, in respect of anything done or
permitted by the Issuer or by the Trustee in pursuance of such action.
New Notes authenticated and delivered after the execution of any agreement modifying, amending
or supplementing this Note may bear a notation in a form approved by the Issuer as to any matter
provided for in such modification, amendment or supplement to the Indenture or the Notes. New
Notes so modified as to conform, in the opinion of the Issuer, to any provisions contained in any
such modification, amendment or supplement may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for this Note.
SECTION 9. Obligations Unconditional. No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal, premium, if any, and interest on this Note at the
times, place and rate, and in the coin or currency, herein prescribed.
SECTION 10. Successor to Issuer. The Issuer may not consolidate or merge with or into any
other person, or convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless (i) the resulting or acquiring entity, if other than the Issuer, is organized
and validly existing under the laws of the United States, any state thereof or the District of
Columbia, and shall expressly assume all the Issuers obligations under the Indenture; and (ii)
immediately after giving effect to such transaction, the Issuer (or any resulting or acquiring
entity, if other than the Issuer) is not in default in the performance of any covenant or condition
under the Indenture.
Upon consolidation, merger, sale or transfer as described above, the resulting or acquiring
entity shall be substituted for the Issuer in the Indenture with the same effect as if it had been
an original party to the Indenture, and the successor entity may exercise the Issuers right and
powers under the Indenture.
SECTION 11. Authorized Denominations. This Note, and any Note issued in exchange or
substitution herefor or in place hereof, or upon registration of transfer, exchange or partial
redemption or repayment of this Note, may be issued only in an Authorized Denomination as specified
in the Pricing Supplement, or if no Authorized Denomination is so specified, in minimum
denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in excess thereof (or
equivalent denominations in other currencies, subject to any other statutory or regulatory
minimums).
SECTION 12. Registration of Transfer. As provided in the Indenture and subject to certain
limitations as therein set forth, the transfer of this Note is registrable in the register
maintained by the Security Registrar, upon surrender of this Note for registration of transfer at
the office or agency of the Issuer designated by it pursuant to the Indenture, duly endorsed by, or
accompanied by a
25
written instrument of transfer in form satisfactory to the Issuer and the Trustee or the
Security Registrar requiring such written instrument of transfer duly executed by, the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of
this series, of Authorized Denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
This Note may be exchanged in whole, but not in part, for security-printed definitive Notes,
only under the circumstances described in the Indenture and (a) if this Note is a global note
clearing initially through The Depository Trust Company (DTC), DTC notifies the Issuer that it is
unwilling or unable to continue as depository for the DTC global note or DTC ceases to be a
clearing agency registered under the United States Securities Exchange Act of 1934, as amended, if
so required by applicable law or regulation, and, in either case, a successor depository is not
appointed by the Issuer within 90 days after receiving such notice or becoming aware that DTC is no
longer so registered; or (b) in the case of any other registered global note, if the Issuer is
notified that any clearing system through which this Note is cleared and settled has been closed
for business for a continuous period of 14 days (other than by reason of holidays, whether
statutory or otherwise) after the original issuance of the relevant notes or has announced an
intention to cease business permanently or has in fact done so and no alternative clearance system
approved by the applicable noteholders is available; or (c) the Issuer, in its sole discretion,
elects to issue definitive registered notes; or (d) after the occurrence of an Event of Default
with respect to this Note, beneficial owners representing a majority in principal amount of the
Notes represented by this Note advise the relevant clearing system through its participants to
cease acting as a depository for this Note.
In any such instance, an owner of a beneficial interest in this Note will be entitled to
physical delivery in definitive form of Notes equal in principal amount to such beneficial interest
and to have such Notes registered in its name. Unless otherwise set forth above, Notes so issued
in definitive form will be issued in Authorized Denominations only and will be issued in registered
form only, without coupons.
Subject to the terms of the Indenture, if the Notes are held in definitive form, a holder may
exchange its Notes for other Notes of the same series in an equal aggregate principal amount and in
Authorized Denominations.
Notes in definitive form may be presented for registration of transfer at the office of the
Security Registrar or at the office of any transfer agent that the Issuer may designate and
maintain. The Security Registrar or the transfer agent will make the transfer or registration only
if it is satisfied with the documents of title and identity of the person making the request. The
Issuer may change the Security Registrar or the transfer agent or approve a change in the location
through which the Security Registrar or transfer agent acts at any time, except that the Issuer
will be required to maintain a security registrar and transfer agent in each place of payment for
the Notes of this series. At any time, the Issuer may designate additional transfer agents for the
Notes of this series.
The Issuer will not be required to (a) issue, exchange, or register the transfer of this Note
if it has exercised its right to redeem the Notes of the series of which this Note is a part for a
period of 15 calendar days before the redemption date, or (b) exchange or register the transfer of
any Notes of the series of which this Note is a part that were selected, called, or are being
called for redemption,
26
except the unredeemed portion of the Notes of the series of which this Note is a part, if
being redeemed in part.
No service charge shall be made for any such registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee,
and any agent of the Issuer or the Trustee may treat the person in whose name this Note is
registered as the owner hereof for all purposes, whether not this Note be overdue, and neither the
Issuer, the Trustee, nor any such agent shall be affected by notice to the contrary, except as
required by applicable law.
[The Notes represented by this global certificate are being issued by means of a book-entry
system with no physical distribution of certificates to be made except as provided in the
Indenture. The book-entry system maintained by Euroclear Bank S.A./N.V., as operator of the
Euroclear system (Euroclear), and/or Clearstream Banking, société anonyme, Luxembourg
(Clearstream, Luxembourg), will evidence ownership of the Notes represented by this global
certificate, with transfers of ownership effected on the records of Euroclear and Clearstream,
Luxembourg and their participants pursuant to rules and procedures established by Euroclear and
Clearstream, Luxembourg and their participants. So long as this Note is registered in the name of
the Common Depository or its nominee, the Issuer will recognize Euroclear and Clearstream,
Luxembourg, as the depositories of the Notes represented hereby, as the owner of the Notes
represented by this global certificate for all purposes, including payment of principal, premium
(if any) and interest, notices, and voting.
Transfers of the Notes represented by this global certificate will be effected through the
facilities of Euroclear and Clearstream, Luxembourg, in accordance with the rules and procedures
established by those depositories. The Issuer has no responsibility for any aspect of the records
kept by Euroclear and Clearstream, Luxembourg or any of their direct or indirect participants. The
Issuer does not supervise these systems in any way.]4
SECTION 13. Events of Default. If an Event of Default (defined in the Indenture as certain
events involving the bankruptcy of the Issuer) shall occur with respect to this Note, the principal
of this Note may be declared due and payable in the manner and with the effect provided in the
Indenture. THERE IS NO RIGHT OF ACCELERATION PROVIDED IN THE INDENTURE IN CASE OF A DEFAULT IN THE
PAYMENT OF INTEREST ON THIS NOTE OR THE PERFORMANCE OF ANY OTHER COVENANT BY THE CORPORATION.
SECTION 14. Defeasance. Unless otherwise specified in the Pricing Supplement, the provisions
of Article Fourteen of the Indenture do not apply to this Note.
SECTION 15. Subordination. The indebtedness of the Issuer evidenced by this Note, including
the principal, premium (if any), interest, or other amounts payable (if any), shall be, to the
extent set forth in the Indenture, subordinate and junior in right of payment to its obligation to
|
|
|
4 |
|
These two paragraphs should be deleted if the Note is a
DTC Note. |
27
holders of Senior Indebtedness (as defined in the Indenture), and each holder of this Note, by
the acceptance hereof, agrees to and shall be bound by such provisions of the Indenture.
SECTION 16. Specified Currency. Unless otherwise provided herein or in the Pricing
Supplement, the principal, premium, if any, and interest on this Note are payable in the Specified
Currency indicated on the face hereof (or, if such Specified Currency is not at the time of such
payment legal tender for the payment of public and private debts, in (a) such other coin or
currency of the country that issued such Specified Currency or (b) (if such Specified Currency is
the euro) the successor currency under applicable law, in each case as at the time of such payment
is legal tender for the payment of debts).
In the event the Specified Currency indicated on the face hereof has been replaced by another
currency (a Replacement Currency), any amount due pursuant to this Note may be repaid, at the
option of the Issuer, in the Replacement Currency or in U.S. dollars, at a rate of exchange which
takes into account the conversion, at the rate prevailing on the most recent date on which official
conversion rates were quoted or set by the national government or other authority responsible for
issuing the Replacement Currency, from the Specified Currency to the Replacement Currency and, if
necessary, the conversion of the Replacement Currency into U.S. dollars at the rate prevailing on
the date of such conversion. Notwithstanding the foregoing, if this Note originally was issued in a
domestic currency of a state that is or subsequently becomes a Member State of the European Union,
then this Note may be redenominated in euro, if subsequent to the issuance of this Note, such state
participates in the European monetary union. This Note may be redenominated as a matter of law
whether or not the Pricing Supplement provides for redenomination.
If the Specified Currency indicated on the face hereof is other than U.S. dollars (referred to
in this Section 16 as a Foreign Currency), the Issuer generally will pay principal, premium (if
any), interest and other amounts payable (if any) in the Foreign Currency. Holders of beneficial
interests in this Note through a participant in DTC (other than Euroclear or Clearstream,
Luxembourg) will receive payments in U.S. dollars, regardless of the Foreign Currency, unless those
holders elect to receive payments on this Note in the Foreign Currency, which election shall be
made pursuant to procedures and arrangements in place between DTC and its participants. DTC shall
notify the Trustee of any such election in accordance with arrangements in place between DTC and
the Trustee.
If holders of beneficial interests in this Note do not elect to receive payments in the
Foreign Currency, the Trustee or an affiliate or other agent of the Trustee performing currency
exchange transactions and procedures on its behalf (collectively referred to herein as the
Exchange Agent) will convert any payments due to those holders of beneficial interests in this
Note into U.S. dollars. The U.S. dollar amount of any such payment shall be the amount of the
Foreign Currency otherwise payable converted into U.S. dollars at the applicable exchange rate,
determined as described below. All costs of those conversions will be shared pro rata among the
holders of beneficial interests not electing to receive payments in the Foreign Currency in
proportion to their respective holdings by deduction from the applicable payments.
The conversion described above will be made by the Exchange Agent using the exchange rate for
the Foreign Currency into U.S. dollars prevailing as of 11:00 a.m. (New York City time) on the
second Business Day (in Charlotte, North Carolina and New York City) prior to the relevant
28
payment date. If the applicable exchange rate quotation is unavailable from the entity or
source ordinarily used by the Exchange Agent in the normal course of business, the Exchange Agent
will obtain a quotation from a leading foreign exchange bank in New York City, which may be an
affiliate of the Trustee or another entity selected by the Trustee for that purpose after
consultation with the Issuer. If no quotation is available from a leading foreign exchange bank,
payment will be made in the applicable Foreign Currency to the account or accounts specified by DTC
to the Trustee, unless the applicable Foreign Currency is unavailable as described below.
If the Issuer determines that a payment hereon cannot be made in the Foreign Currency, due to
the imposition of exchange controls or other circumstances beyond the Issuers control, or the
Foreign Currency is unavailable because that currency is no longer used by the government of the
relevant country or for the settlement of transactions by public institutions of or within the
international banking community, such payment will be made in U.S. dollars. The Trustee and/or the
London Paying Agent, on receipt of the Issuers written instructions and at the Issuers expense,
will give prompt notice to the beneficial holders of this Note if such determination is made. The
U.S. dollar amount of any payment described in this paragraph shall be the amount of the Foreign
Currency otherwise payable converted into U.S. dollars using the most recently available market
exchange rate for the applicable Foreign Currency.
Any payment made under such circumstances in U.S. dollars, where the payment is required to be
made in the Foreign Currency, will not constitute an Event of Default with respect to this Note.
SECTION 17. Original Issue Discount Note. If this Note is identified as an Original Issue
Discount Note in the Pricing Supplement, then unless otherwise specified therein, the amount
payable to the holder of this Note in the event of redemption, repayment or acceleration of
Maturity will be the Amortized Face Amount of this Note (as defined below) as of the date of such
event. The Amortized Face Amount shall be the amount equal to (a) the Issue Price (as set forth
in the Pricing Supplement) plus (b) the original issue discount amortized from the Original Issue
Date to the date as of which the Amortized Face Amount is calculated, as specified in the Pricing
Supplement.
SECTION 18. Dual Currency Note. If this Note is identified as a Dual Currency Note in the
Pricing Supplement, the Issuer has the option of making each scheduled payment of principal and
interest, if any, due on this Note either in the Specified Currency designated on the face hereof
or in the optional payment currency specified in the Pricing Supplement. If the Issuer elects to
make a payment in the optional payment currency, the amount payable in such optional payment
currency shall be determined using the exchange rate specified in the Pricing Supplement, on the
terms specified in the Pricing Supplement.
SECTION 19. Mutilated, Defaced, Destroyed, Lost or Stolen Notes. In case this Note shall at
any time become mutilated, defaced, destroyed, lost or stolen, and this Note or evidence of the
loss, theft or destruction hereof satisfactory to the Issuer and the Security Registrar and such
other documents or proof as may be required by the Issuer and the Security Registrar shall be
delivered to the Security Registrar, the Security Registrar shall issue a new Note of like tenor
and principal amount, having a serial number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Note or in lieu of the Note destroyed, lost or stolen
but, in the case of any destroyed, lost or stolen Note, only upon receipt of evidence satisfactory
to the Issuer and the
29
Security Registrar that this Note was destroyed, stolen or lost, and, if required, upon
receipt of indemnity satisfactory to the Issuer and the Security Registrar. Upon the issuance of
any substituted Note, the Issuer may require the payment of a sum sufficient to cover all expenses
and reasonable charges connected with the preparation and delivery of a new Note. If any Note which
has matured or has been redeemed or repaid or is about to mature or to be redeemed or repaid shall
become mutilated, defaced, destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender thereof except in the
case of a mutilated or defaced Note) upon compliance by the holder with the provisions of this
paragraph.
SECTION 20. Miscellaneous. No recourse shall be had for the payment of principal of (and
premium, if any) or interest on, this Note for any claim based hereon, or otherwise in respect
hereof, against any shareholder, employee, agent, officer or director, as such, past, present or
future, of the Issuer or of any successor organization, either directly or through the Issuer or
any successor organization, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived and released.
SECTION 21. Defined Terms. All terms used in this Note which are defined in the Indenture or
the Prospectus and are not otherwise defined in this Note shall have the meanings assigned to them
in the Indenture or the Prospectus, as applicable.
Unless specified otherwise in the Pricing Supplement, Business Day means, a day that meets
all the following requirements:
(a) for all Notes, is any weekday that is not a legal holiday in New York City or
Charlotte, North Carolina, or any other place of payment of the applicable Note, and is not
a date on which banking institutions in those cities are authorized or required by law or
regulation to be closed;
(b) for any Note where the base rate is LIBOR, also is a day on which commercial banks
are open for business (including dealings in the Index Currency specified in the Pricing
Supplement) in London, England;
(c) for any Note denominated in euro or any Note where the base rate is EURIBOR, also
is a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer
System or any successor is operating (a Target Settlement Date); and
(d) for any Note that has a Specified Currency other than U.S. dollars or euro, also is
not a day on which banking institutions generally are authorized or obligated by law,
regulation, or executive order to close in the Principal Financial Center of the country of
the Specified Currency.
Unless specified otherwise in the Pricing Supplement, Principal Financial Center means (i)
the capital city of the country issuing the Specified Currency, except that with respect to U.S.
Dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the Principal
Financial Center shall be New York City, Sydney and Melbourne, Toronto, Johannesburg, and Zurich,
respectively; and (ii) the capital city of the country to which the Index Currency relates,
30
except that with respect to U.S. Dollars, Australian dollars, Canadian dollars, South African
rand and Swiss francs, the Principal Financial Center shall be New York City, Sydney, Toronto,
Johannesburg and Zurich, respectively.
SECTION 22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING ANY OTHERWISE APPLICABLE CONFLICTS OF LAWS
PROVISIONS AND ALL APPLICABLE UNITED STATES FEDERAL LAWS AND REGULATIONS.
31
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
|
|
|
|
|
|
|
|
|
TEN COM
|
|
|
|
as tenants in common |
|
|
TEN ENT
|
|
|
|
as tenants by the entireties |
|
|
JT TEN
|
|
|
|
as joint tenants with right of survivorship and not as
tenants in common |
|
|
|
|
|
|
|
|
|
|
UNIF GIFT MIN ACT
|
|
|
|
|
|
as Custodian for |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Cust)
|
|
|
|
(Minor) |
|
|
|
|
|
Under Uniform Gifts to Minors Act |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(State)
|
|
|
Additional abbreviations may also be used though not in the above list.
|
|
|
|
|
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto |
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
|
|
/ /
|
|
|
|
|
|
|
|
Please print or type name and address, including zip code of assignee |
the within Note of BANK OF AMERICA CORPORATION and all rights thereunder and does hereby
irrevocably constitute and appoint
to transfer the said Note on the books of the within-named Issuer, with full power of substitution
in the premises
Dated:
|
|
|
SIGNATURE GUARANTEED:
|
|
|
|
|
|
|
|
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of this Note |
32
Schedule 1
SCHEDULE OF TRANSFERS, EXCHANGES AND EXTENSIONS
The following increases and decreases in the principal amount of this Note have been made:
|
|
|
|
|
|
|
|
|
Increase (Decrease) in |
|
|
|
|
|
|
Principal Amount of |
|
|
|
|
|
|
this Note Due to |
|
|
|
|
|
|
Transfer Among |
|
|
|
|
|
|
Global Notes or |
|
Principal |
|
|
|
|
Redemption, |
|
Amount of this Note |
|
|
Date of Transfer, |
|
Repayment or Non- |
|
After Transfer, |
|
|
Redemption, |
|
Election of Extension |
|
Redemption, |
|
|
Repayment or |
|
of Maturity Date of a |
|
Repayment or |
|
Notation made |
Extension, as |
|
Portion of Global |
|
Extension, as |
|
by or on |
Applicable |
|
Note, as Applicable |
|
Applicable |
|
behalf of the Issuer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
[EXTENDIBLE NOTE RIDER FOR
EXTENSION OF MATURITY AT HOLDERS OPTION]
This Note is an Extendible Note, whereby the registered holder has the option to extend the
Maturity Date of the principal amount of this Note held by such registered holder (whether in whole
or in part) for one or more periods, as specified in the Pricing Supplement, up to but not beyond
the Final Maturity Date specified in the Pricing Supplement, under the terms of this Note as
supplemented by this Extendible Note Rider.
Unless otherwise specified in the Pricing Supplement, the following provisions will apply to
this Note:
This Note will mature on , or if that day is not a Business Day, the immediately
preceding Business Day, unless the Maturity Date of all or any portion of the principal amount of
this Note is extended in accordance with the procedures described below. In no event will the
Maturity Date of this Note be extended beyond the Final Maturity Date.
During the Election Notice Period (as defined below) for each Election Date (as defined
below), the registered holder of this Note may elect to extend the Maturity Date of all or any
portion of the principal amount of this Note. If the holder so elects to extend the Maturity Date
of all or any portion of the principal amount of this Note, the Maturity Date of the principal
amount for which the election has been made will be extended [to
the ___ day of the ___
calendar month]5 following the applicable Election Date (each, an Additional Maturity
Date), up to but not beyond the Final Maturity Date. [If that day is not a Business Day, the
Maturity Date of the applicable principal amount will be extended to the immediately preceding
Business Day.]6 The holder may elect to extend the Maturity Date of all or the
applicable portion of the principal amount of this Note having a principal amount of at least
[$1,000] or any integral multiple of [$1,000] in excess of [$1,000], provided that the principal
amount of any portion of this Note not so extended shall be at least [$1,000].
[The
Election Dates will be the ___ of each month
from, and including, ___ to, and
including, ___, whether or not such day is a Business Day.] To make an election effective on
any Election Date, the registered holder of this Note must deliver (a) a notice of election during
the Election Notice Period for that Election Date and, in the event of an election to extend the
Maturity Date of only a portion of the principal amount of this Note, this Note, or (b) a facsimile
transmission or a letter from a member of a national securities exchange or the Financial Industry
Regulatory Authority, Inc. or a commercial bank or a trust company in the United States setting
forth the name of the holder of this Note, the principal amount hereof, the certificate number of
this Note or a description of this Notes tenor or terms, a statement that the option to elect
extension of Maturity Date is being exercised thereby, the principal amount hereof with respect to
which such option is being exercised and a guarantee that the notice of election form included
below duly completed and, in the event of an election to extend the Maturity Date of only a portion
|
|
|
5 |
|
This form of rider contemplates the option to extend
maturity of the notes on a monthly basis. If the applicable notes are not
extendible monthly, this language will be modified to reflect semi-annual,
quarterly or other periods for extension. |
|
6 |
|
Modify as necessary for applicable business day
convention. |
34
of the principal amount of this Note, this Note, will be delivered to the [Trustee] [London
Paying Agent] as required hereby. A form of notice of election to extend the Maturity Date is set
forth below.
The
Election Notice Period for each Election Date will begin on the ___ Business Day
prior to the applicable Election Date, and will end at [12:00 noon, New York City time,] on that
Election Date. However, if that Election Date is not a Business Day, the Election Notice Period
will be extended to [12:00 noon, New York City time,] on the next following day that is a Business
Day. The election notice must be delivered to the [Trustee] [London Paying Agent] no later than
12:00 noon, New York City time, on the last Business Day in the Election Notice Period. Upon
delivery to the [Trustee] [London Paying Agent] of a notice of election to extend the Maturity Date
of the Notes or any portion thereof during any Election Notice Period, that election will be
revocable during each day of that Election Notice Period, until [12:00 noon, New York City time,]
on the last Business Day in the applicable Election Notice Period, at which time the notice will
become irrevocable.
If on any Election Date, the registered holder of this Note does not make a timely or proper
election to extend the Maturity Date of all or any portion of the principal amount of this Note,
the principal amount of this Note for which an election has not been made will become due and
payable on the Initial Maturity Date, or the applicable Additional Maturity Date to which the
Maturity of this Note has previously been extended, as applicable. The principal amount of this
Note for which an election is not exercised will be represented by a non-extendible substitute
note, [substantially in the form attached hereto as Annex A,]7 which will be completed
by the [Trustee] [London Paying Agent] in consultation with the Issuer, and issued by the [Trustee]
[London Paying Agent] in the name of the holder hereof on that Election Date in accordance with the
terms of the Indenture, subject to the delivery of this Note to the [Trustee] [London Paying
Agent]. In such a case, Schedule 1 hereto will be annotated as of that Election Date to reflect
the corresponding decrease in the principal amount of this Note. The non-extendible substitute
note so issued will have the same terms as this Note, except that such note:
|
|
|
will not be extendible; |
|
|
|
|
will have a new CUSIP number [and ISIN and Common Code]; and |
|
|
|
|
will retain the then-current Maturity Date of this Note. |
Interest on a non-extendible substitute note will accrue from, and including, the last
Interest Payment Date on this Note as to which interest was duly paid or provided by the Issuer.
The failure to elect to extend the Maturity Date of all or any portion of this Note will be
irrevocable, and will be binding upon any subsequent holder of this Note or any applicable
replacement note. The holder of a non-extendible substitute note received as a consequence of the
failure to make such an election may not elect to exchange that non-extendible substitute note for
an interest in this Note. The Issuer and the [Trustee] [London Paying Agent] will deem this Note
cancelled as to any portion of the principal amount hereof for which a duly completed form of
|
|
|
7 |
|
The form of non-extendible substitute note will be
annexed to the global note at the time of issuance of notes extendible at the
holders option. |
35
notice of election to extend the Maturity Date and, if applicable, this Note are not delivered
to the [Trustee] [London Paying Agent] within the applicable Election Notice Period in accordance
with the terms of this Note.
Form of Notice of Election to Extend Maturity Date
The undersigned hereby elects to extend the Maturity Date of the Bank of America Corporation
[insert name of specific notes] (CUSIP Number
[ISIN and Common Code
]) (or the portion thereof specified below) with the effect provided in the Note by
surrendering such Note to the [the Trustee at 101 Barclay Street, New York, New York, 10286] [the
London Paying Agent at One Canada Square, London, E14 5AL,], or such other address of which the
Issuer shall from time to time notify the registered holders of the Note, in the event of an
election to extend the Maturity Date of only a portion of the principal amount of the Note,
together with this form of Notice of Election to Extend Maturity Date duly completed by the
holder.
If the option to extend the Maturity Date of less than the entire principal amount of the Note
is elected, specify the portion of the Note (which shall be [U.S.$1,000] or an integral multiple of
[U.S.$1,000] in excess thereof) as to which the holder elects to extend the Maturity Date:
[U.S.$] ; and specify the principal amount or amounts (which shall be [$1,000] or an
integral multiple of [U.S.$1,000] in excess thereof) of the non-extendible substitute note or
notes, [substantially in the form attached to the Note as Annex A,] to be issued to the holder for
the portion of the principal amount of the Note for which the option to extend the Maturity Date is
not being elected (in the absence of any such specification, one non-extendible substitute note,
[substantially in the form of Annex A,] will be issued for the portion of the principal amount of
the Note as to which the option to extend Maturity Date is not being made): [U.S.$] .
|
|
|
|
|
|
|
Dated: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[NOTICE: The signature on this Notice of Election to Extend
Maturity Date must correspond with the name as written upon the
face of the Note in every particular, without alteration or
enlargement or any change whatever.] |
|
|
36
[EXTENDIBLE NOTE RIDER
FOR EXTENSION OF MATURITY AT ISSUERS OPTION]
This Note is an Extendible Note, whereby the Issuer has the option to extend the maturity of
this Note for one or more periods, as specified in the Pricing Supplement (each, an Extension
Period), up to but not beyond the Final Maturity Date specified in the Pricing Supplement, under
the terms of this Note as supplemented by this Extendible Note Rider.
Unless otherwise specified in the Pricing Supplement, the following provisions will apply to
this Note:
The Issuer may exercise its option with respect hereto by delivery to the [Trustee] [London
Paying Agent] a notice of such exercise at least 45, but not more than 60, calendar days prior to
the Stated Maturity Date originally in effect with respect hereto or, if the Stated Maturity Date
has already been extended, prior to the maturity date then in effect (each, an Extended Maturity
Date). After such receipt and not later than 40 calendar days prior to the Stated Maturity Date
or an Extended Maturity Date, as the case may be (each, an Existing Maturity Date), the [Trustee]
[London Paying Agent] (or any duly appointed paying agent) will mail by first class mail, postage
prepaid, to the registered holder hereof a notice (the Extension Notice) relating to such
extension period (the Extension Period) setting forth (i) the election of the Issuer to extend
the Maturity hereof, (ii) the new Extended Maturity Date, (iii) the interest rate applicable to the
Extension Period (which interest rate may be higher during the Extension Period), and (iv) the
provisions, if any, for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such redemption may
occur during the Extension Period. Upon the mailing by the [Trustee] [London Paying Agent] (or any
duly appointed paying agent) of an Extension Notice to the registered holder hereof, the maturity
shall be extended automatically as set forth in the Extension Notice, and, except as modified by
the Extension Notice and as described in the next paragraph, this Note will have the same terms as
prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to the Existing Maturity
Date hereof (or, if such date is not a Business Day, on the immediately succeeding Business Day),
the Issuer, at its option, may revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by mailing or causing the applicable
Paying Agent to mail notice of such higher interest rate, by first class mail, postage prepaid, to
the registered holder hereof. Such notice shall be irrevocable. Thereafter, this Note will bear
such higher interest rate for the Extension Period.
[If the Issuer elects to extend the maturity hereof, the registered holder hereof will have
the option to elect repayment hereof in whole or in part by the Issuer on the Existing Maturity
Date then in effect at a price equal to the principal amount hereof plus any accrued and unpaid
interest to such date. In order for this Note to be so repaid on the Existing Maturity Date, the
Issuer must receive, at least 15 days but not more than 30 calendar days prior to the Existing
Maturity Date then in effect with respect hereto: (i) this Note with the form Option to Elect
Repayment below duly completed, or (ii) ) a facsimile transmission or a letter from a member of a
national securities exchange or the Financial Industry Regulatory Authority, Inc. or a commercial
bank or a trust company in the United States setting forth the name of the registered holder
hereof, the principal amount hereof to
37
be repaid, the certificate number, or a description of the tenor and terms hereof, a statement
that the option to elect repayment is being exercised thereby, and a guarantee that this Note,
together with the duly completed form entitled Option to Elect Repayment attached hereto, will be
received by the [Trustee] [London Paying Agent] not later than the fifth Business Day after the
date of such facsimile transmission or letter; provided, however, that such
facsimile transmission or letter shall only be effective if this Note and duly completed form are
received by the [Trustee] [London Paying Agent] by such fifth Business Day. Such option may be
exercised by the registered holder hereof for less than the aggregate principal amount hereof then
outstanding, provided that the principal amount hereof remaining outstanding after repayment is at
least an Authorized Denomination as specified in the Pricing Supplement, or if no such Authorized
Denomination is so specified, [U.S.$1,000] or its equivalent in the applicable Specified Currency,
unless otherwise specified in the Pricing Supplement.
38
[OPTION TO ELECT REPAYMENT]
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to repay this Note
(or portion hereof specified below) pursuant to its terms at a price equal to the principal amount
hereof together with interest to the repayment date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, [the Trustee must receive at 101 Barclay Street, New York, New
York, 10286] [the London Paying Agent must receive at One Canada Square, London, E14 5AL,] or at
such other place or places of which the Issuer from time to time shall notify the registered holder
of this Note, not less than 30 nor more than 60 calendar days prior to an Optional Repayment Date,
if any, shown in the Pricing Supplement, this Note with this Option to Elect Repayment form duly
completed.
If less than the entire principal amount of this Note is to be repaid, (a) specify the portion
hereof which the registered holder elects to have repaid and (b) specify the portion hereof (which
shall be a minimum amount equal to the minimum Authorized Denomination) which is not being repaid
(in the absence of any such specification to the contrary, one such Note will be issued for the
portion not being repaid).
|
|
|
|
|
|
|
Date: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as
written upon the face of this Note in every
particular, without alteration or enlargement or
any change whatever. |
|
|
|
|
|
Principal amount to be repaid, if amount to
be repaid is less than the principal amount of
this Note (principal amount remaining must
be in the minimum authorized denomination
or any authorized integral multiple in excess
thereof):
[U.S.$]
|
|
|
|
|
|
Amount to be Reissued (principal amount
remaining must be in the minimum
authorized denomination or any authorized
integral multiples in excess thereof):
[U.S.$]
|
|
|
|
|
|
[U.S.$]
|
|
|
|
|
o [Option To Use DTC Tender Procedures] |
39
|
|
|
|
|
|
|
|
|
DTC Participant |
|
Fill in registration of Notes if to be issued
otherwise than to the registered holder: |
|
|
Number: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DTC Participant |
|
|
|
|
|
|
|
|
Name |
|
|
DTC Participant Telephone |
|
|
|
|
|
|
Number:
|
|
|
|
Address: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Please print name and address including zip code) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOCIAL SECURITY OR OTHER
TAXPAYER ID NUMBER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40