EXHIBIT 4.11
[FORM OF REGISTERED SUBORDINATED NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF BANK OF AMERICA CORPORATION
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED $___________________
NUMBER R _________ CUSIP 06050 _______
BANK OF AMERICA CORPORATION
____% SUBORDINATED NOTE, DUE ________
BANK OF AMERICA CORPORATION, a Delaware corporation (herein called the
"Corporation," which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to _________________________ or registered assigns, the principal sum of
_________________________________________ DOLLARS/1/ on ________________,
____/2/ and to pay interest on said principal sum, semi-annually/3/ in arrears
on ____________ and __________ of each year, commencing ____________, at the
rate of __% per annum/4/, from the ___________ or ___________, as the case may
be, next preceding the date this Note to which interest has been paid, unless
the date hereof is a date to which interest has been paid, in which case from
the date of this Note, or unless no interest has been paid on the Notes, in
which case from _________________, until
____________________
/1/ This form provides for Notes denominated in, and principal and interest
payable in, United States dollars. The form, as used, may be modified to
provide, alternatively, for Notes denominated in, and principal and interest and
other amounts, if any, payable in a foreign currency or currency unit, with the
specific terms and provisions, including any limitations on the issuance of
Notes in such currency, additional provisions regarding paying and other agents
and additional provisions regarding the calculation and payment of such
currency, set forth therein.
/2/ This form provides for Notes that will mature only on a specified date. If
the maturity of Notes of a series may be renewed at the option of the holder, or
extended at the option of the Corporation, the form, as used, will be modified
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
renewed or extended, as the case may be, changes in the interest rate, if any,
and requirements for notice.
/3/ This form provides for semi-annual interest payments. The form, as used, may
be modified to provide, alternatively, for annual, quarterly, or other periodic
interest payments.
/4/ This form provides for interest at a fixed rate. The form, as used, may be
modified to provide, alternatively, for interest at a variable rate or rates,
with the method of determining such rate set forth therein.
payment of such principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after a record date for the
Notes, (which shall be the close of business on the [last] [fifteenth] day of
the calendar month next preceding an interest payment date) and before the next
succeeding interest payment date, this Note shall bear interest from such
interest payment date; provided, however, that if the Corporation shall default
in the payment of interest due on such interest payment date, then this Note
shall bear interest from the next preceding interest payment date to which
interest has been paid, or, if no interest has been paid on the Notes, from
____________. Interest on this Note will accrue from the original issue date
specified above until the principal amount is paid and will be computed on the
basis of a [360-day year of twelve 30-day months]. Interest payments will equal
the amount of interest accrued from, and including, the preceding interest
payment date in respect of which interest has been paid or duly provided for (or
from, and including, the original issue date specified above, if no interest has
been paid or duly provided for) to, but excluding, the interest payment date or
the maturity date, as the case may be. If the maturity date or an interest
payment date falls on a day which is not a Business Day as defined below,
principal of or interest payable with respect to such maturity date or interest
payment date will be paid on the succeeding Business Day with the same force and
effect as if made on such maturity date or interest payment date, as the case
may be, and no additional interest shall accrue for the period from and after
such maturity date or interest payment date. The interest so payable, and
punctually paid or duly provided for, on any interest payment date will, as
provided in such Indenture, 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 record date for such
interest payment date.
The principal of and interest on this Note are payable in immediately
available funds in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts, at
the office or agency of the Corporation in ____________________ or such other
places that the Corporation shall designate as provided in the Indenture;
provided, however, that interest may be paid, at the option of the Corporation,
by check mailed to the person entitled thereto at his address last appearing on
the registry books of the Corporation relating to the Notes. Notwithstanding the
preceding sentence, payments of principal of and interest payable on the
maturity date will be made by wire transfer of immediately available funds to a
designated account maintained in the United States upon (i) receipt of written
notice by the Issuing and Paying Agent (as described on the reverse hereof) from
the registered holder hereof not less than one Business Day prior to the due
date of such principal and (ii) presentation of this Note to the Issuing and
Paying Agent, at the Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
10286. Any interest not punctually paid or duly provided for shall be payable as
provided in the Indenture./5/ [As used herein, "Business Day" means any day that
is not a Saturday or a Sunday, and that is (1) not a legal holiday in New York,
New York or Charlotte, North Carolina, (2) not a day on which banking
institutions in those cities or any other place of payment with respect to the
Note are authorized or required by law or regulation to be closed, and (3) (i)
if the Note is denominated in euro, a day on which the TransEuropean Real-Time
Gross-Settlement Express Transfer, or "TARGET," System is in
_________________________
/5/ This form does not contemplate the offer of Notes to United States Aliens
(for United States federal income tax purposes). If Notes are offered to United
States Aliens, the form of Note, as used, may be modified to provide for the
payment of additional amounts to such United States Aliens or, if applicable,
the redemption of such Notes in lieu of payment of such additional amounts.
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place; or (ii) if the Note is denominated in a specified currency other than
United States dollars or euro, a day on which banking institutions generally are
authorized or obligated by law, regulation or obligated by executive order to
close in the Principal Financial Center of the country of the specified
currency.
"Principal Financial Center" means:
(1) the capital city of the country issuing the specified currency,
except that with respect to United States dollars, Australian dollars, Canadian
dollars, South African rand, and Swiss francs, the "Principal Financial Center"
is New York, Sydney and Melbourne, Toronto, Johannesburg, and Zurich,
respectively, or
(2) the capital city of the country to which the LIBOR currency
relates, except that with respect to is United States dollars, Australian
dollars, Canadian dollars, South African rand, and Swiss francs, the "Principal
Financial Center" is New York, Sydney, Toronto, Johannesburg, and Zurich,
respectively.]
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee or by an authenticating agent on behalf of the Trustee by manual
signature, this Note shall not be entitled to any benefit under such Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this Instrument to be
duly executed, by manual or facsimile signature, under its corporate seal or a
facsimile thereof.
BANK OF AMERICA CORPORATION
By: ________________________________
[SEAL] Title: Senior Vice President
ATTEST:
By:______________________
Assistant Secretary
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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,
as Trustee
By:__________________________
Authorized Signatory
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[Reverse of Note]
BANK OF AMERICA CORPORATION
____% SUBORDINATED NOTE, DUE ________
This Note is one of a duly authorized series of Securities of the
Corporation unlimited in aggregate principal amount issued and to be issued
under an Indenture dated as of January 1, 1995, as supplemented by a First
Supplemental Indenture dated as of August 28, 1998 (herein called the
"Indenture") between the Corporation (successor to NationsBank Corporation) and
The Bank of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Corporation, the Trustee and the holders of
the Notes, and the terms upon which the Notes are, and are to be, authenticated
and delivered. This Note is also one of the Notes designated as the
Corporation's ___% Subordinated Notes, due ____ (herein called the "Notes"),
initially in the aggregate principal amount of $______________. [The amount of
Notes of this series may be increased by the Corporation in the future.] The
Trustee initially shall act as Security Registrar and Authenticating and Issuing
and Paying Agent in connection with the Notes.
THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY THE NOTES, INCLUDING
THE PRINCIPAL THEREOF AND INTEREST THEREON, IS, TO THE EXTENT AND IN THE MANNER
SET FORTH IN THE INDENTURE, SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ITS
OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE, AND
EACH HOLDER OF THE NOTES, BY THE ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND
BY SUCH PROVISIONS OF THE INDENTURE.
This Note is not subject to any sinking fund.
Except in those situations in which the Corporation may become
obligated to pay additional amounts (as described herein), the Notes of this
series are not subject to redemption at the option of the Corporation or
repayment at the option of the holder prior to maturity./6/
The provisions of Article Fourteen of the Indenture do not apply to
Securities of this Series.
[Subject to the exemptions and limitations set forth below, the
Corporation will pay additional amounts to the beneficial owner of this Note
that is a non-United States person in order to ensure that every net payment on
such Note will not be less, due to payment of United States withholding tax,
than the amount then due and payable. For this purpose, a "net payment" on the
Note means a payment by the Corporation or any paying agent, including payment
of
-------------
/6/ This form provides for Notes that are not subject to redemption at the
option of the Corporation or repayment at the option of the holder. The form, as
used, may be modified to provide, alternatively, for redemption at the option of
the Corporation or repayment at the option of the holder, with the terms and
conditions of such redemption or repayment, as the case may be, including
provisions regarding sinking funds, if applicable, redemption prices, and notice
periods, set forth therein.
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principal and interest, after deduction for any present or future tax,
assessment or other governmental charge of the United States. These additional
amounts will constitute additional interest on the Note.
The Corporation will not be required to pay additional amounts, however, in
any of the circumstances described in items (1) through (13) below.
(1) Additional amounts will not be payable if a payment on the 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 the 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 the 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 the 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 United
States dollar as its functional currency.
(3) Additional amounts will not be payable if a payment on the 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 the Note being
or having been a:
. personal holding company;
. foreign personal holding company;
. foreign private foundation or other foreign tax-exempt organization;
. controlled foreign investment company; or
. corporation which has accumulated earnings to avoid United States
federal income tax.
(4) Additional amounts will not be payable if a payment on the Note is
reduced as a result of any tax, assessment, or other governmental charge that is
imposed or withheld solely by
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reason of the beneficial owner of the Note owning or having owned, actually or
constructively, 10% or more of the total combined voting power of all classes of
the Corporation's stock entitled to vote;
(5) Additional amounts will not be payable if a payment on the 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 the Note being a
bank extending credit pursuant to a loan agreement entered into in the ordinary
course of business.
For purposes of items (1) through (5) above, "beneficial owner"
includes 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
the Note that is:
. a fiduciary;
. a partnership;
. a limited liability company;
. another fiscally transparent entity; or
. not the sole beneficial owner of the Note, or any portion of
the Note.
However, this exception to the obligation to pay additional amounts
will only apply 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, partner, beneficial owner, or
member received directly its beneficial or distributive share of the
payment.
(7) Additional amounts will not be payable if a payment on the Note is
reduced as a result of any tax, assessment, or other governmental charge that is
imposed or withheld by reason of the failure of the beneficial owner of the 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
reporting requirements is required as a precondition to exemption from such tax,
assessment or other governmental charge by statute or regulations of the United
States or by an applicable income tax treaty to which the United States is a
party.
(8) Additional amounts will not be payable if a payment on the 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
the Note by the Corporation or any paying agent.
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(9) Additional amounts will not be payable if a payment on the 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 the 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 the
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 the Note is
reduced as 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 the 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 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 the Note is
reduced as a result of any combination of items (1) through (12) above.]
[The Notes of this series may be redeemed at the option of the
Corporation in whole, but not in part, at any time, on giving not less than 30
nor more than 60 days' notice to the Trustee and the holders of the Notes, if
the Corporation has or may become obliged to pay additional amounts 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 thereof or therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations after the date of this Note.
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Prior to the publication of any notice of redemption, the Corporation shall
deliver to the Trustee a certificate signed by the Chief Financial Officer or a
Senior Vice President of the Corporation stating that the Corporation is
entitled to effect such redemption and setting forth a statement of facts
showing the conditions precedent to the right to redeem.
Notes so redeemed will be redeemed at 100% of their principal amount
together with interest accrued up to (but excluding) the date of redemption.]
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Corporation relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the Corporation designated
by it pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the Trustee
or the Security Registrar duly executed by, the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in the
denominations of $_______ and any integral multiple in excess thereof. As
provided in the Indenture, and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of
different authorized denominations, as requested by the holder surrendering the
same.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the registry books of the
Corporation relating to the Notes, upon surrender of this Note for registration
of transfer at the office or agency of the Corporation designated by it pursuant
to the Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Trustee or the Security
Registrar duly executed by, the registered holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge will be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Corporation, the Trustee, the Issuing and Paying Agent, and any agent of the
Corporation may treat the person in whose name this Note is registered as the
absolute owner hereof for the purpose of receiving payment as herein provided
and for all other purposes, whether or not this Note be overdue, and neither the
Corporation, the Trustee, the Issuing and Paying Agent nor any such agent of the
Corporation shall be affected by notice to the contrary.
If an Event of Default (defined in the Indenture as certain events
involving the bankruptcy of the Corporation) shall occur with respect to the
Notes, the principal of all the Notes 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
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IN CASE OF A DEFAULT IN THE PAYMENT OF INTEREST OR THE PERFORMANCE OF ANY OTHER
COVENANT BY THE CORPORATION.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation with the consent of the holders of not less than 66
2/3% in aggregate principal amount of the Notes then outstanding and all other
Securities 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 Notes 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
Corporation with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
holder 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.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer, or director, as such,
past, present, or future, of the Corporation or any predecessor or successor
corporation, 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 issue
hereof, expressly waived and released.
The Notes of this series shall be dated the date of their authentication.
All terms used in this Note which are not defined herein, but are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
If the Notes are to be issued and outstanding pursuant to a book-entry
system, the following paragraph is applicable: The Notes 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
The Depository Trust Company ("DTC") will evidence ownership of the Notes, with
transfers of ownership effected on the records of DTC and its participants
pursuant to rules and procedures established by DTC and its participants. The
Corporation will recognize Cede & Co., as nominee of DTC, while the registered
holder of the Notes, as the owner of the Notes for all purposes, including
payment of principal (premium, if any) and interest, notices, and voting.
Transfer of principal (premium, if any) and interest to participants of DTC will
be the responsibility of DTC, and transfer of principal (premium, if any) and
interest to beneficial owners of the Notes by participants of DTC will be the
responsibility of
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such participants and other nominees of such beneficial owners. So long as the
book-entry system is in effect, the selection of any Notes to be redeemed will
be determined by DTC pursuant to rules and procedures established by DTC and its
participants. The Corporation will not be responsible or liable for such
transfers or payments or for maintaining, supervising, or reviewing the records
maintained by DTC, its participants, or persons acting through such
participants.
If the Notes may be settled through depositories located in Europe, the
following paragraph is applicable: Transfers of Notes outside of the United
States may be effected through the facilities of Clearstream Banking, societe
anonyme, and Euroclear Bank, S.A./N.V., as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Note 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-- Custodian
----------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________ Attorney to transfer said Note
on the books of the Corporation, with full power of substitution in the
premises.
Dated: _________________ __________________________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed.
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