As Filed With The Securities and Exchange Commission on July 22, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Bank of America Corporation
(Exact name of registrant as specified in its charter)
Delaware 56-0906609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Bank of America Corporate Center, Charlotte, North Carolina 28255
(704) 386-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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PAUL J. POLKING
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
Smith Helms Mulliss & Moore, L.L.P. Stroock & Stroock & Lavan LLP
201 North Tryon Street 180 Maiden Lane
Charlotte, North Carolina 28202 New York, New York 10038
Tel: (704) 343-2000 Tel: (212) 806-5400
Fax: (704) 334-8467 Fax: (212) 806-6006
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Approximate date of commencement of the proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of each Proposed maximum Proposed maximum Amount of
class of securities Amount to offering price aggregate registration
to be registered be registered (1)(3) per unit (2) offering price (1)(2) fee
<S> <C> <C> <C> <C>
Debt Securities .................... N/A N/A N/A
Warrants ........................... (4) N/A N/A N/A
Units .............................. (5) N/A N/A N/A
Preferred Stock Depositary Shares N/A N/A N/A
Common Stock ....................... (6) N/A N/A N/A
Total .............................. $14,999,302,387 100% $14,999,302,387 $4,169,807
</TABLE>
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footnotes on following page
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continued from preceding page
(1) In no event will the aggregate initial offering price of the Debt
Securities, Warrants, Units, Preferred Stock, Depositary Shares and Common
Stock issued under this registration statement exceed $14,999,302,387, or
the U.S. dollar equivalent thereof in one or more foreign currencies or
currency units. If any Debt Securities are issued at an original issue
discount, then additional Debt Securities may be issued so long as the
aggregate original principal amount of all such Debt Securities, together
with the original principal amount of all other securities registered and
offered hereunder, does not exceed such amount.
(2) Estimated in accordance with Rule 457 of the Securities Act solely for
purposes of computing the registration fee. The proposed maximum offering
price per unit will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder.
(3) Includes an indeterminate amount of Debt Securities, an indeterminate
number of shares of Preferred Stock, Depositary Shares or Common Stock and
an indeterminate number of Warrants and Units as may be offered or sold in
connection with market making activities by affiliates of the Registrant.
(4) There are being registered hereby such indeterminate number of Warrants as
may be issued by the Registrant at indeterminate prices. Such Warrants may
be issued together with any Debt Securities or other Warrants. Warrants
may be exercised to purchase Debt Securities registered hereby or to
purchase or sell (i) securities of an entity unaffiliated with the
Registrant, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or currency
units or (iii) commodities.
(5) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. There are being registered hereby
such indeterminate number of Units as may be issued by the Registrant at
indeterminate prices. Units may consist of one or more Warrants and Debt
Securities or any combination of the above.
(6) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act.
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PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
CONTAINED IN THIS REGISTRATION STATEMENT AND SUPPLEMENTS TO SUCH PROSPECTUS
WILL ALSO BE USED IN CONNECTION WITH UP TO $697,613 AGGREGATE PRINCIPAL AMOUNT
OF DEBT SECURITIES, WARRANTS, UNITS, PREFERRED STOCK AND DEPOSITARY SHARES AND
COMMON STOCK, REGISTERED UNDER REGISTRATION STATEMENT NO. 333-13811. THIS
REGISTRATION STATEMENT CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 2 TO
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 (NO. 333-13811) AND SUCH
POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE
EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION
8(c) OF THE SECURITIES ACT OF 1933. UPON THE EFFECTIVENESS OF SUCH
POST-EFFECTIVE AMENDMENT, THIS REGISTRATION STATEMENT AND REGISTRATION NO.
333-13811 WILL RELATE TO AN AGGREGATE OF $15,000,000,000 OF DEBT SECURITIES,
WARRANTS, UNITS, PREFERRED STOCK AND DEPOSITARY SHARES AND COMMON STOCK.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
(A redherring appears on the left-hand side of this page, rotated 90 degrees.
Text follows.)
The information contained in this prospectus is not complete and may be
changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and we are not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1999
PROSPECTUS
(BANK OF AMERICA LOGO)
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-5000
$15,000,000,000
Debt Securities, Warrants, Units, Preferred Stock,
Depositary Shares and Common Stock
We may offer and sell from time to time up to $15,000,000,000 (or the U.S.
dollar equivalent) of:
o debt securities
o warrants to purchase our debt securities or securities of other
unaffiliated issuers
o a combination of securities issued in the form of units
o preferred stock
o fractional interests in preferred stock represented by depositary shares
o common stock.
We may also issue common stock upon conversion, exchange or exercise of any of
the securities listed above.
When we sell a particular series of securities, we will prepare a prospectus
supplement describing the offering and terms of that series of securities. You
should read this prospectus and that prospectus supplement carefully. The
securities described in this prospectus may be denominated in U.S. dollars or a
foreign currency as described in the prospectus supplement.
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Our debt securities are unsecured and are not savings accounts, deposits or
other obligations of a bank. The securities are not guaranteed by any bank and
are not insured by the Federal Deposit Insurance Corporation or any other
governmental agency.
Neither the Securities and Exchange Commission, any state securities commission
nor the Commissioner of Insurance of the State of North Carolina has approved
or disapproved the securities to be issued under this prospectus or determined
if this prospectus is accurate or adequate. Any representation to the contrary
is a criminal offense.
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The date of this prospectus is , 1999.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ABOUT THIS PROSPECTUS ............................................... 4
BANK OF AMERICA CORPORATION ......................................... 5
General ........................................................... 5
Business Segment Operations ....................................... 5
Acquisitions and Sales ............................................ 6
USE OF PROCEEDS ..................................................... 6
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS ....................... 7
REGULATORY MATTERS .................................................. 8
General ........................................................... 8
Interstate Banking ................................................ 8
Capital and Operational Requirements .............................. 8
Dividends ......................................................... 10
Source of Strength ................................................ 10
Changes in Regulations ............................................ 10
PLAN OF DISTRIBUTION ................................................ 10
DESCRIPTION OF DEBT SECURITIES ...................................... 12
General ........................................................... 12
Reopenings ........................................................ 14
Conversion ........................................................ 14
Exchange, Registration and Transfer ............................... 14
Payment and Paying Agents ......................................... 14
Subordination ..................................................... 15
Sale or Issuance of Capital Stock of Banks ........................ 15
Waiver of Covenants ............................................... 16
Modification of the Indentures .................................... 16
Meetings and Action by Securityholders ............................ 16
Defaults and Rights of Acceleration ............................... 16
Collection of Indebtedness ........................................ 17
Notices ........................................................... 17
Concerning the Trustees ........................................... 17
WARRANTS ............................................................ 18
Description of Debt Warrants ...................................... 18
Description of Universal Warrants ................................. 18
Modification ...................................................... 19
Enforceability of Rights of Warrantholders; Governing Law ......... 19
Unsecured Obligations ............................................. 19
DESCRIPTION OF UNITS ................................................ 20
DESCRIPTION OF PREFERRED STOCK ...................................... 20
General ........................................................... 20
The Preferred Stock ............................................... 20
ESOP Preferred Stock .............................................. 21
Series B Preferred Stock .......................................... 23
Series BB Preferred Stock ......................................... 23
</TABLE>
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<TABLE>
<CAPTION>
Page
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<S> <C>
DESCRIPTION OF DEPOSITARY SHARES ............................. 24
General .................................................... 24
Dividends and Other Distributions .......................... 25
Redemption of Depositary Shares ............................ 25
Voting the Preferred Stock ................................. 25
Amendment and Termination of the Deposit Agreement ......... 26
Changes of Depositary ...................................... 26
Miscellaneous .............................................. 26
Resignation and Removal of Depositary ...................... 26
DESCRIPTION OF COMMON STOCK .................................. 26
General .................................................... 26
Voting and Other Rights .................................... 27
Dividends .................................................. 27
REGISTRATION AND SETTLEMENT .................................. 27
The Depository Trust Company ............................... 27
Cedelbank and Euroclear .................................... 29
WHERE YOU CAN FIND MORE INFORMATION .......................... 32
FORWARD-LOOKING STATEMENTS ................................... 33
LEGAL OPINIONS ............................................... 33
EXPERTS ...................................................... 33
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration or continuous offering process. We may from
time to time sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$15,000,000,000 or the equivalent of this amount in foreign currencies or
foreign currency units.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities we will provide you with a
prospectus supplement containing specific information about the terms of the
securities being offered. The prospectus supplement which contains specific
information about the terms of the securities being offered will also include a
discussion of certain U.S. federal income tax consequences and any risk factors
or other special considerations applicable to those securities. The prospectus
supplement may also add, update or change information in this prospectus. If
there is any inconsistency between the information in the prospectus and the
prospectus supplement, you should rely on the information in the prospectus
supplement. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information" beginning on page 32 of this prospectus.
You should rely only on the information provided in this prospectus and in
any prospectus supplement including the information incorporated by reference.
Neither we, nor any underwriters or agents, have authorized anyone to provide
you with different information. We are not offering the securities in any state
where the offer is not permitted. You should not assume that the information in
this prospectus, or any supplement to this prospectus, is accurate at any date
other than the date indicated on the cover page of these documents.
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we," "us," "our," or similar references mean
Bank of America Corporation.
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BANK OF AMERICA CORPORATION
General
Bank of America Corporation is the successor issuer to NationsBank
Corporation ("NationsBank"). On September 25, 1998, NationsBank was
reincorporated from North Carolina to Delaware. On September 30, 1998,
BankAmerica Corporation, a Delaware corporation ("BA"), was merged with and
into NationsBank, with NationsBank as the surviving corporation in the merger.
Upon completion of the merger, NationsBank changed its name to "BankAmerica
Corporation." On April 28, 1999, we changed the name of our company to "Bank of
America Corporation."
We are a multi-bank holding company registered under the Bank Holding
Company Act of 1956. Our principal assets are the shares of stock of Bank of
America, N.A. and our other banking and nonbanking subsidiaries. Through those
subsidiaries, we provide a diverse range of banking and nonbanking financial
services and products throughout the United States and in selected
international markets.
We, and our subsidiaries, are subject to supervision by United States
federal and state banking and other regulatory authorities.
Business Segment Operations
We report the results of our operations through four business segments:
(1) Consumer Banking, (2) Commercial Banking, (3) Global Corporate and
Investment Banking and (4) Principal Investing and Asset Management.
Our Consumer Banking segment provides comprehensive retail banking
services to individuals and small businesses through multiple delivery
channels, including approximately 4,700 banking centers and 14,000 automated
teller machines. These banking centers and automated teller machines are
located principally throughout our franchise and serve approximately 30 million
households in 21 states and the District of Columbia. This segment also
provides specialized services such as the origination and servicing of
residential mortgage loans, issuance and servicing of credit cards, direct
banking via telephone and personal computer, student lending and certain
insurance services. The consumer finance component provides mortgage, home
equity and automobile loans to consumers, retail finance programs to dealers
and lease financing to purchasers of new and used cars.
Our Commercial Banking segment provides a wide range of commercial banking
services for businesses with annual revenues of up to $500 million. Services
provided include commercial lending, treasury and cash management services,
asset-backed lending and factoring. Also included in this segment are our
commercial finance operations which provide: equipment loans and leases, loans
for debt restructuring, mergers and working capital, real estate and healthcare
financing and inventory financing to manufacturers, distributors and dealers.
Our Global Corporate and Investment Banking segment provides a broad array
of financial and investment banking products such as capital-raising products,
trade finance, treasury management, investment banking, capital markets,
leasing and financial advisory services to domestic and international
corporations, financial institutions and government entities. Clients are
supported through offices in 37 countries in four distinct geographic regions:
United States and Canada; Asia; Europe, Middle East and Africa; and Latin
America. Products and services provided include loan origination, cash
management, foreign exchange, leasing, leveraged finance, project finance, real
estate, senior bank debt, structured finance and trade services. Our Global
Corporate and Investment Banking segment also provides commercial banking
services for businesses with annual revenues of $500 million or more. Through a
separate subsidiary, Banc of America Securities LLC, Global Corporate and
Investment Banking is a primary dealer of United States Government securities,
underwrites and makes markets in equity securities,
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and underwrites and deals in high-grade and high-yield corporate debt
securities, commercial paper, mortgage-backed and asset-backed securities,
federal agencies securities and municipal securities. Debt and equity
securities research, loan syndications, mergers and acquisitions advisory
services and private placements are also provided through Banc of America
Securities LLC. Additionally, our Global Corporate and Investment Banking
segment is a market maker in derivative products, which include swap
agreements, option contracts, forward settlement contracts, financial futures
and other derivative products in certain interest rate, foreign exchange,
commodity and equity markets. In support of these activities, Global Corporate
and Investment Banking takes positions in securities to support client demands
and for its own account.
Our Principal Investing and Asset Management segment includes Asset
Management which provides asset management, banking and trust services for high
net worth clients both in the United States and internationally through the
Private Bank. In addition, this segment provides full service and discount
brokerage, investment advisory and investment management, as well as advisory
services for our affiliated family of mutual funds. The Principal Investing
area includes direct equity investments in businesses and investments in
general partnership funds.
Acquisitions and Sales
As part of our operations, we regularly evaluate the potential acquisition
of, and hold discussions with, various financial institutions and other
businesses that are eligible for bank holding company ownership or control. In
addition, we regularly analyze the values of, and submit bids for, the
acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. We also regularly consider the
potential disposition of certain of our assets, branches, subsidiaries or lines
of business. As a general rule, we publicly announce any material acquisitions
or dispositions when a definitive agreement has been reached.
USE OF PROCEEDS
Unless we describe a different use in a prospectus supplement, we will use
net proceeds from the sale of the securities for general corporate purposes.
General corporate purposes include:
o our working capital needs;
o investments in, or extensions of credit to, our banking and nonbanking
subsidiaries;
o the possible acquisitions of other financial institutions or their assets
or liabilities;
o the possible acquisitions of or investments in other businesses; and
o the possible reduction of outstanding indebtedness or the repurchase of
our outstanding equity securities.
We will temporarily invest the net proceeds pending its use. We may, from
time to time, engage in additional capital financings as we determine
appropriate based on our needs and prevailing market conditions.
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RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
Our consolidated ratio of earnings to fixed charges and our ratio of
earnings to fixed charges and preferred stock dividend requirements for each of
the years in the five year period ended December 31, 1998 and for the three
months ended March 31, 1999 are as follows:
<TABLE>
<CAPTION>
Year Ended
December 31, Three Months
---------------------------------------------------- Ended
1994 1995 1996 1997 1998 March 31, 1999
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<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits ......... 2.4 2.3 2.3 2.2 1.8 2.3
Including interest on deposits ......... 1.6 1.5 1.6 1.6 1.4 1.6
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends:
Excluding interest on deposits ......... 2.2 2.1 2.2 2.2 1.8 2.3
Including interest on deposits ......... 1.6 1.5 1.5 1.5 1.4 1.6
</TABLE>
o The consolidated ratio of earnings to fixed charges is calculated as
follows:
net income before taxes + fixed charges - equity in undistributed earnings or
losses of unconsolidated subsidiaries
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fixed charges
o The consolidated ratio of earnings to combined fixed charges and
preferred stock dividends is calculated as follows:
net income before taxes + fixed charges - equity in undistributed earnings or
losses of unconsolidated subsidiaries
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fixed charges + preferred stock dividend requirements
Fixed charges consist of:
o interest expense, which we calculate excluding interest on deposits in
one case and including that interest in the other,
o amortization of debt discount and appropriate issuance costs, and
o one-third (the amount deemed to represent an appropriate interest factor)
of net rent expense under lease commitments.
Preferred stock dividend requirements represent dividend requirements on
the outstanding preferred stock adjusted to reflect the pre-tax earnings that
would be required to cover such dividend requirements.
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REGULATORY MATTERS
The following discussion describes elements of an extensive regulatory
framework applicable to bank holding companies and banks and specific
information about us and our subsidiaries. Federal regulation of banks and bank
holding companies is intended primarily for the protection of depositors and
the Bank Insurance Fund rather than stockholders or creditors.
General
As a bank holding company, we are subject to the supervision of the Board
of Governors of the Federal Reserve System. Our bank subsidiaries are subject
to supervision and examination by applicable federal agencies, principally the
Office of the Comptroller of the Currency. Because bank deposits are insured by
the Federal Deposit Insurance Corporation ("FDIC"), our bank subsidiaries are
also subject to that agency's regulations. In addition to the impact of
regulation, commercial banks are affected significantly by the actions of the
Federal Reserve Board as it attempts to control the money supply and credit
availability to influence the economy.
As a bank holding company, we are also subject to regulation under the
Bank Holding Company Act of 1956 (the "BHCA"), and to the BHCA's examination
and reporting requirements. Under the BHCA, bank holding companies generally
may not acquire direct or indirect ownership or control of more than five
percent of the voting shares or substantially all of the assets of any company,
including a bank, without the prior approval of the Federal Reserve Board. In
addition, bank holding companies are prohibited under the BHCA from engaging in
nonbanking activities other than those that the Federal Reserve Board has
determined are closely related to banking.
Interstate Banking
Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding
company may acquire banks in states other than its home state without regard to
the permissibility of such acquisitions under state law, but is subject to any
state requirement that the banks have been organized and operating for a
minimum period of time, not to exceed five years, and the requirement that the
bank holding company, before or after the proposed acquisition, controls no
more than 10 percent of the total amount of deposits of insured depository
institutions in the United States and no more than 30 percent, or such lesser
or greater amount set by state law, of such deposits in that state.
The Interstate Banking and Branching Act also authorizes, subject to
certain restrictions, banks to merge across state lines and to create
interstate branches. The Interstate Banking and Branching Act also permits a
bank to open new branches in a state in which it does not already have banking
operations if the state enacts a law permitting such branching. To the extent
permitted under these laws, we plan to consolidate our banking subsidiaries,
other than our limited purpose credit card bank, into a single bank. As of July
23, 1999, we operate one interstate bank, Bank of America, N.A., headquartered
in Charlotte, North Carolina, with domestic offices primarily in Arizona,
Arkansas, California, Florida, Georgia, Idaho, Illinois, Iowa, Kansas,
Maryland, Missouri, Nevada, New Mexico, North Carolina, Oklahoma, Oregon, South
Carolina, Tennessee, Texas, Virginia, Washington and the District of Columbia.
We also operate separate banks in Arizona and California. In addition, we have
a federal savings bank headquartered in Portland, Oregon with branch offices in
several states. As previously described, we regularly evaluate merger and
acquisition opportunities and anticipate that we will continue that practice.
Capital and Operational Requirements
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, these regulatory agencies may
from time to time require that a banking organization
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maintain capital above the minimum levels, based on its financial condition or
actual or anticipated growth. The Federal Reserve Board risk-based guidelines
define a three-tier capital framework. Tier 1 capital consists of common and
qualifying preferred shareholders' equity, less certain intangibles and other
adjustments. Tier 2 capital consists of preferred stock not qualifying as Tier
1 capital, subordinated and other qualifying debt and the allowance for credit
losses up to 1.25 percent of risk weighted assets. Tier 3 capital includes
subordinated debt that is unsecured, fully paid, has an original maturity of at
least two years, is not redeemable before maturity without the prior approval
by the Federal Reserve and includes a lock-in clause precluding payment of
either interest or principal if the payment would cause the issuing bank's
risk-based capital ratio to fall or remain below the required minimum. The sum
of Tier 1 and Tier 2 capital less investments in unconsolidated subsidiaries
represents qualifying total capital, at least 50 percent of which must consist
of Tier 1 capital. Risk-based capital ratios are calculated by dividing Tier 1
and total capital by risk-weighted assets. Assets and off-balance sheet
exposures are assigned to one of four categories of risk-weights, based
primarily on relative credit risk. The minimum Tier 1 capital ratio is 4
percent and the minimum total capital ratio is 8 percent. Our Tier 1 and total
risk-based capital ratios under these guidelines at March 31, 1999 were 7.40
percent and 11.17 percent, respectively. At March 31, 1999, we did not have any
subordinated debt that qualified as Tier 3 capital.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
quarterly average total assets. Although the stated minimum ratio is 3 percent,
most banking organizations are required to maintain ratios of at least 100 to
200 basis points above 3 percent. Our leverage ratio at March 31, 1999 was 6.47
percent. We believe that we meet the leverage ratio requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal bank regulatory agencies
to implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. This act imposes progressively more constraints on operations,
management and capital distributions, depending on the category in which an
institution is classified. Failure to meet the capital guidelines could also
subject a banking institution to capital raising requirements. In addition,
this act requires the various regulatory agencies to prescribe certain
non-capital standards for safety and soundness relating generally to operations
and management, asset quality and executive compensation and permits regulatory
action against a financial institution that does not meet such standards.
Banking regulatory agencies have adopted regulations that define the five
capital categories identified by this act, using the total risk-based capital,
Tier 1 risk-based capital and leverage capital ratios as the relevant capital
measures. Under those regulations, a "well capitalized" institution must have a
Tier 1 capital ratio of at least 6 percent, a total capital ratio of at least
10 percent and a leverage ratio of at least 5 percent and not be subject to a
capital directive order. Under these guidelines, our banks are considered well
capitalized.
Banking agencies have also adopted final regulations which mandate that
regulators take into consideration (a) concentrations of credit risk; (b)
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position); (c) risks from non-traditional activities, as well
as an institution's ability to manage those risks; and (d) market risk in
connection with trading activity, when determining the adequacy of an
institution's capital. That evaluation will be made as a part of the
institution's regular safety and soundness examination.
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Dividends
Our funds for cash dividends to stockholders are derived from a variety of
sources, including cash and temporary investments. The primary source of such
funds, however, is dividends received from our banks. Those subsidiaries are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain capital above regulatory
minimums. The appropriate federal regulatory authority is authorized to
determine under certain circumstances relating to the financial condition of
the bank or bank holding company that the payment of dividends would be an
unsafe or unsound practice and to prohibit payment. The ability to pay
dividends also may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA. Our rights, and
the rights of our stockholders and creditors, to participate in any
distribution of the assets or earnings of our banks is further subject to the
prior claims of creditors of those entities.
Source of Strength
According to Federal Reserve Board policy, a bank holding company is
expected to act as a source of financial strength to its subsidiary banks and
to commit resources to support its subsidiary banks. This support may be
required at times when we are not able to provide such support. Similarly, the
cross-guaranty provisions of the Federal Deposit Insurance Act provides that if
the FDIC suffers or anticipates a loss as a result of a default by one of our
banking or thrift subsidiaries or by providing assistance to a subsidiary in
danger of default, then the other bank or thrift subsidiaries may be assessed
for the FDIC's loss.
Changes in Regulations
Proposals to change the laws and regulations governing the banking
industry are frequently introduced in Congress, in the state legislatures and
before the various bank regulatory agencies. At the present time, Congress is
considering legislation that would increase the permissible scope of securities
and insurance activities in which a bank holding company or its affiliates may
engage. We cannot determine the likelihood and timing of any such proposals or
legislation and the impact they might have on us and our subsidiaries.
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters or dealers, through
agents or directly to other purchasers. The underwriters, dealers or agents may
be Banc of America Securities LLC or any of our other affiliates. Each
prospectus supplement will state the terms of the securities to be offered,
including the names of any underwriters or agents, the public offering or
purchase price of the securities and the net proceeds we will receive from the
sale, any underwriting discounts and other items constituting underwriters'
compensation, any discounts and commissions allowed or paid to dealers, any
commissions allowed or paid to agents, and if the securities will be listed on
a securities exchange or exchanges, the identity of any exchange.
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through
one or more underwriters acting alone. The underwriters may acquire the
securities for their own account and may resell the securities from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or varying prices determined at the time of sale. If an
underwriting syndicate is used, we will list the managing underwriter or
underwriters on the cover page of the prospectus supplement. Unless otherwise
stated in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions and each of the
underwriters will be obligated to purchase all of its securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
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We may offer and sell securities through agents from time to time. We will
name any agent involved in the offer and sale of any securities and describe
any commissions payable by us to the agent in the prospectus supplement. Unless
otherwise indicated in the prospectus supplement, the agent will be acting on a
best efforts basis during the appointment period.
We may sell directly to, and solicit offers from, institutional investors
or others who may be deemed to be underwriters as defined in the Securities Act
of 1933 (the "Securities Act") for any resale of the securities. We will
describe the terms of any such sales in the prospectus supplement.
Securities may be sold in connection with a remarketing after their
purchase by one or more firms including our affiliates, acting as principal for
their accounts or as our agent.
We may authorize underwriters, dealers or agents to solicit offers by
certain institutions to purchase debt securities from us pursuant to delayed
delivery contracts providing for payment and delivery at a future date. The
type of security, the amount, the price and other significant terms of such
delayed delivery contracts will be described in the prospectus supplement.
Institutions that may be solicited include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, all as approved by us. The obligations of
any purchaser under any such contract will not be subject to any conditions
except that (1) the purchase of the debt securities will not at the time of
delivery be prohibited under the laws of the jurisdiction to which the
purchaser is subject, and (2) if the debt securities are also being sold to
underwriters acting as principals for their own account, the underwriters must
have purchased the debt securities not sold for delayed delivery. The
underwriters and other such persons will not have any responsibility for the
validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the
securities may be considered to be an underwriter, as that term is defined in
the Securities Act, of the securities being offered and sold. Any discounts or
commissions received by them from us and any profit realized by them on the
sale or resale of the securities may be considered to be underwriting discounts
and commissions under the Securities Act.
To facilitate offering the securities, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
securities or any other securities the prices of which may be used to determine
payments on such securities. Specifically, the underwriters may overallot in
connection with the offering, creating a short position in the securities for
their own accounts. In addition, to cover overallotments or to stabilize the
price of the securities or of any other securities, the underwriters may bid
for, and purchase, the securities or any other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed securities in transactions to
cover syndicate short positions, in stabilization transactions or otherwise.
Any of these activities may stabilize or maintain the market price of the
securities above independent market levels. The underwriters are not required
to engage in these activities, and may end any of these activities at any time.
Since any series of securities offered and sold pursuant to this
prospectus may be a new issue with no established trading market, there may not
be a liquid trading market for the security.
Under agreements entered into with us, underwriters and agents may be
entitled to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, or to contribution for payments the
underwriters or agents may be required to make.
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Banc of America Securities LLC is a broker-dealer and one of our
subsidiaries. Each initial offering and any remarketing of securities involving
Banc of America Securities LLC or any of our other affiliates will be conducted
in compliance with the requirements of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. regarding the offer and sale
of securities of an affiliate. Following the initial distribution of
securities, our affiliates, including Banc of America Securities LLC, may buy
and sell the securities in secondary market transactions as part of their
business as a broker-dealer. Any sale will be at negotiated prices relating to
prevailing prices at the time of sale. This prospectus and related prospectus
supplements may be used by one or more of our affiliates in connection with
offers and sales related to secondary market transactions in the securities to
the extent permitted by applicable law. Any of our affiliates may act as
principal or agent in such transactions. Banc of America Securities LLC will
not execute a transaction in the securities in a discretionary account without
specific prior written approval of that customer.
DESCRIPTION OF DEBT SECURITIES
We will issue any senior debt securities under an Indenture dated as of
January 1, 1995 (the "Senior Indenture") between us and U.S. Bank Trust
National Association, as successor Trustee to BankAmerica National Trust
Company (the "Senior Trustee"). We will issue any subordinated debt securities
under an Indenture dated as of January 1, 1995 (the "Subordinated Indenture")
between us and The Bank of New York, Trustee (the "Subordinated Trustee"). We
refer to the Senior Indenture and the Subordinated Indenture collectively as
the "Indentures" and the Senior Trustee and Subordinated Trustee collectively
as the "Trustees."
The following summaries of certain significant provisions of the
Indentures are not complete and are qualified in their entirety by the
provisions of the applicable Indentures, which are exhibits to the Registration
Statement and are incorporated herein by reference. Whenever defined terms are
used, but not defined in this prospectus, the terms have the meanings given to
them in the Indentures.
General
The total amount of securities that may be offered and sold using this
prospectus is limited to the aggregate initial offering price of the securities
registered under the Registration Statement. Neither Indenture limits the
amount of debt securities that may be issued.
Debt securities are our direct unsecured obligations and are not
obligations of our subsidiaries. The senior debt securities of each series rank
equally with all of our other unsecured senior debt. The subordinated debt
securities of each series are subordinate and junior in right of payment to our
Senior Indebtedness.
We will issue the debt securities in fully registered form without
coupons. The debt securities may be denominated in U.S. dollars or in another
currency or currency unit. Any debt securities that are denominated in U.S.
dollars will be issued in denominations of $1,000 or a multiple thereof unless
otherwise provided in the prospectus supplement. If any of the debt securities
are denominated in a foreign currency or currency unit, or if principal or any
premium or interest on any of the debt securities is payable in any foreign
currency or currency unit, the authorized denominations, as well as any
investment considerations, restrictions, tax consequences, specific terms and
other information relating to such issue of debt securities and such foreign
currency or currency unit, will be stated in the prospectus supplement.
We may issue debt securities in one or more series with the same or
different maturities. We may issue debt securities which provide for an amount
less than the stated principal amount to be paid upon an acceleration of its
maturity (each an "Original Issue Discount Security"). Original Issue Discount
Securities may bear no interest or may bear interest at a rate which at the
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time of issuance is below market rates and will be sold at a discount below
their stated principal amount. Certain debt securities may be deemed to be
issued with original issue discount for United States Federal income tax
purposes. If we issue debt securities with original issue discount, we will
discuss the Federal tax implications in the prospectus supplement.
Each prospectus supplement will describe the terms of any debt securities
we issue. The terms may include:
o the title and type of the debt securities;
o any limit on the aggregate principal amount of the debt securities;
o the person to whom interest is payable if other than the owner of the
debt securities;
o the date or dates on which the principal of the debt securities will be
payable;
o the interest rate or rates, which may be fixed or variable, and the
method used to calculate that interest;
o the interest payment dates, the regular record dates for the interest
payment date, and the date interest will begin to accrue;
o the place or places where payments may be made on the debt securities and
the place or places where the debt securities may be presented for
registration of transfer or exchange;
o any date or dates after which the debt securities may be redeemed or
purchased in whole or in part at our option or the option of the
noteholder pursuant to any sinking fund or other redemption provision and
the periods, prices, terms and conditions of such redemption or purchase;
o if other than the full principal amount, the portion of the principal
amount of the debt securities that will be payable upon declaration or
acceleration of the maturity;
o the currency of principal and any premium and interest payments on the
debt securities, if other than U.S. currency;
o any index used to determine the amount of principal, premium and interest
payments on the debt securities;
o if the debt securities will be issued in other than book-entry form;
o the identification or method of selecting any interest rate calculation
agents, exchange rate calculation agents or any other agents for the debt
securities;
o if either the defeasance (Section 14.02) or covenant defeasance (Section
14.03) sections of the Indentures are not applicable to the debt
securities; and
o any provision relating to the extension or renewal of the maturity date
of the debt securities.
Our ability to make payments of principal and any premium and interest on
the debt securities may be affected by the ability of our bank and nonbank
subsidiaries to pay dividends. Their ability, as well as our ability, to pay
dividends in the future is and could be influenced by bank regulatory
requirements and capital guidelines. See "Regulatory Matters."
Neither Indenture contains provisions protecting noteholders against a
decline in credit quality resulting from takeovers, recapitalizations, the
incurrence of additional indebtedness or our restructuring. If our credit
quality declines as a result of such an event, or otherwise, the ratings of any
debt securities then outstanding may be withdrawn or downgraded.
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Reopenings
We have the ability to "reopen," or later increase, the principal amount
of a series of debt securities offered and sold by us without notice to the
noteholders by selling additional debt securities with the same terms.
Conversion
We may issue debt securities that are convertible, at either our or the
noteholder's option, into our preferred stock, depositary shares, common stock
or other debt securities. If this is the case, the prospectus supplement will
describe that conversion ability and its terms such as:
o the periods during which conversion may be elected;
o the conversion price payable and the number of shares or amount of
preferred stock, depositary shares, common stock or other debt securities
that may be purchased upon conversion, and any adjustment provisions; and
o the procedures for electing conversion.
Exchange, Registration and Transfer
Subject to the terms of the applicable Indenture, debt securities of any
series, other than debt securities issued in book-entry form, may be exchanged
at the option of the noteholder for other debt securities of the same series
and of an equal aggregate principal amount and type in any authorized
denominations.
Debt securities may be presented for registration of transfer at the
office of the security registrar or at the office of any transfer agent
designated and maintained by us. The prospectus supplement will include the
name of the transfer agent. The security registrar or 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. There will not be a
service charge for any exchange or registration of transfer of debt securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange. At any
time we may change transfer agents or approve a change in the location through
which any transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the series. At any time, we may
designate additional transfer agents for any series of debt securities.
We will not be required to (1) issue, exchange or register the transfer of
any debt security of any series to be redeemed for a period of 15 days after
the selection of the debt securities to be redeemed; or (2) exchange or
register the transfer of any debt security that was selected, called or is
being called for redemption, except the unredeemed portion of any debt security
being redeemed in part.
For a discussion of restrictions on the exchange, registration and
transfer of Global Securities, see "Registration and Settlement."
Payment and Paying Agents
The principal and any premium and interest on debt securities will be paid
at the offices of the paying agents we may designate from time to time. In
addition, at our option, payment of any interest may be made by check mailed to
the address of the noteholder as recorded in the security register. Interest on
a debt security on any interest payment date generally will be paid to the
person in whose name the debt security is registered at the close of business
on the regular record date for that payment. For a discussion of payment of
principal, premium or interest on Global Securities, see "Registration and
Settlement."
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We have initially designated the principal corporate trust offices of the
Trustees in the City of New York as the places where the debt securities may be
presented for payment. At any time we may change paying agents or the
designated payment office. Any other paying agents for the debt securities of
each series will be named in the prospectus supplement.
Subordination
The subordinated debt securities will be subordinated in right of payment
to all our Senior Indebtedness. The Subordinated Indenture defines "Senior
Indebtedness" as any indebtedness for money borrowed, including all of our
indebtedness for borrowed and purchased money, all of our obligations arising
from off-balance sheet guarantees and direct credit substitutes, and our
obligations associated with derivative products such as interest and foreign
exchange rate contracts and commodity contracts, that were outstanding on the
date we executed the Subordinated Indenture, or were created, incurred or
assumed after that date and all deferrals, renewals, extensions and refundings
of that indebtedness or obligations unless the instrument creating or
evidencing the indebtedness provides that the indebtedness is subordinate in
right of payment to any of our other indebtedness. Each prospectus supplement
for a series of subordinated debt securities will indicate the aggregate amount
of our Senior Indebtedness outstanding at that time and any limitation on the
issuance of additional Senior Indebtedness.
If there is a default or event of default on any Senior Indebtedness that
is not remedied and we and the Subordinated Trustee receive notice of this from
the holders of at least 10% in principal amount of any kind or category of any
Senior Indebtedness or if the Subordinated Trustee receives notice from us, we
will not be able to make any principal, premium or interest payments on the
subordinated debt securities or repurchase our subordinated debt securities.
If we repay any subordinated debt security before the required date or in
connection with a distribution of our assets to creditors pursuant to a
dissolution, winding up, liquidation or reorganization, any principal, premium
or interest will be paid to holders of Senior Indebtedness before any holders
of Subordinated Indebtedness are paid. In addition, if such amounts were
previously paid to the holders of Subordinated Debt or the Subordinated
Trustee, the holders of Senior Debt shall have first rights to such amounts
previously paid.
Until all Senior Indebtedness is paid in full, the holders of subordinated
debt securities will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of our assets.
Sale or Issuance of Capital Stock of Banks
The Senior Indenture prohibits the issuance, sale or other disposition of
capital stock, or securities convertible into or options, warrants or rights to
acquire capital stock, of any Principal Subsidiary Bank (as defined below) or
of any subsidiary which owns shares of capital stock, or securities convertible
into or options, warrants or rights to acquire capital stock, of any Principal
Subsidiary Bank, with the following exceptions:
o sales of directors' qualifying shares;
o sales or other dispositions for fair market value, if, after giving
effect to the disposition and to conversion of any shares or securities
convertible into capital stock of a Principal Subsidiary Bank, we would
own at least 80% of each class of the capital stock of such Principal
Subsidiary Bank;
o sales or other dispositions made in compliance with an order of a court
or regulatory authority of competent jurisdiction;
o any sale by a Principal Subsidiary Bank of additional shares of its
capital stock, securities convertible into shares of its capital stock,
or options, warrants or rights to subscribe for
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or purchase shares of its capital stock, to its shareholders at any price,
so long as before such sale we owned, directly or indirectly, securities
of the same class and immediately after the sale, we owned, directly or
indirectly, at least as great a percentage of each class of securities of
the Principal Subsidiary Bank as we owned before such sale of additional
securities; and
o any issuance of shares of capital stock, or securities convertible into
or options, warrants or rights to subscribe for or purchase shares of
capital stock, of a Principal Subsidiary Bank or any subsidiary which
owns shares of capital stock, or securities convertible into or options,
warrants or rights to acquire capital stock, of any Principal Subsidiary
Bank, to us or our wholly owned subsidiary.
A Principal Subsidiary Bank is defined in the Senior Indenture as any Bank
with total assets equal to more than 10% of our total consolidated assets. At
present, Bank of America, N.A. is our only Principal Subsidiary Bank.
Waiver of Covenants
The holders of a majority in principal amount of the debt securities of
all series affected that are outstanding under the Indenture may waive
compliance with certain covenants or conditions of the Indentures.
Modification of the Indentures
We and the applicable Trustee may modify the Indenture with the consent of
the holders of at least 66 2/3% of the aggregate principal amount of the debt
securities of all series at the time outstanding under that Indenture and
affected thereby, voting as one class. However, no modification will extend the
fixed maturity of, reduce the principal amount or redemption premium of, or
reduce the rate of or extend the time of payment of interest on, any debt
security without the consent of each noteholder. No modification will reduce
the percentage of debt securities which is required to consent to modification
without the consent of all holders of the debt securities outstanding.
In addition, we and the Trustee may execute supplemental indentures in
certain limited circumstances without the consent of any holders of outstanding
debt securities.
In determining whether the holders of the required principal amount of the
debt securities outstanding have given any request, demand, authorization,
direction, notice, consent or waiver thereunder, (a) the principal amount of an
Original Issue Discount Security that will be deemed to be outstanding will be
the amount of the principal thereof that would be due and payable at such time
upon an event of default, and (b) the principal amount of a debt security
denominated in a foreign currency or currency unit will be the U.S. dollar
equivalent on the date of original issuance of the debt security.
Meetings and Action by Securityholders
The Trustee may call a meeting in its discretion or upon request by us or
the holders of at least 10% in principal amount of the debt securities
outstanding of such series upon the giving of notice. If a meeting of
noteholders is duly held, any resolution raised or decision taken will be
binding on all holders of debt securities of that series.
Defaults and Rights of Acceleration
The Subordinated Indenture defines an event of default as our bankruptcy
under Federal bankruptcy laws. The Senior Indenture defines an event of default
as any one of the following events:
o our failure to pay principal or premium when due on any securities of a
series;
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o our failure to pay interest on any securities of a series, within 30 days
after the interest becomes due;
o our breach of any of our other covenants contained in the senior debt
securities or the Senior Indenture, that is not cured within 90 days
after written notice to us by the Senior Trustee, or to us and the Senior
Trustee by the holders of at least 25% in principal amount of all senior
debt securities then outstanding under the Senior Indenture and affected
thereby; and
o certain events involving our bankruptcy, insolvency or liquidation.
If an event of default occurs and is continuing, either the Trustee or the
holders of 25% in principal amount of the outstanding debt securities of that
series may declare the principal amount or, if the debt securities are Original
Issue Discount Debt Securities, a specified portion of the principal amount of
all debt securities of that series to be due and payable immediately. The
holders of a majority in principal amount of the debt securities then
outstanding or of such series affected may annul the declaration of an event of
default and waive past defaults.
Payment of principal of the subordinated debt securities may not be
accelerated in the case of a default in the payment of principal or any premium
or interest or the performance of any of our other covenants.
Collection of Indebtedness
If we fail to pay principal or premium on the debt securities or if we are
over 30 days late on an interest payment on the debt securities, the
appropriate Trustee can demand that we pay to it, for the benefit of the
noteholders, the amount which is due and payable on the debt securities
including any interest incurred because of our failure to make that payment. If
we fail to pay the required amount on demand, the Trustee may take appropriate
action, including instituting judicial proceedings. Further, the noteholder may
also institute suit to enforce our obligation to make payment of principal,
premium or interest due on any debt security regardless of the actions taken by
the Trustee.
The holders of a majority in principal amount of the debt securities then
outstanding under an Indenture may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under that
Indenture but the Trustee will be entitled to receive from the holders
reasonable indemnity against expenses and liabilities.
Periodically, we are required to file with the Trustees a certificate
stating that we are not in default with any of the terms of the Indentures.
Notices
We will provide noteholders any required notices by first-class mail to
the addresses of the holders as they appear in the security register.
Concerning the Trustees
We and our subsidiaries have from time to time maintained deposit accounts
and conducted other banking transactions with The Bank of New York and U.S.
Bank Trust National Association, and their affiliated entities in the ordinary
course of business. Each of the Trustees also serves as trustee for certain
series of our outstanding indebtedness under other indentures.
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WARRANTS
Description of Debt Warrants
We may issue warrants to purchase debt securities ("Debt Warrants"). Debt
Warrants may be issued independently or together with any of our other
securities and may be attached to or separate from such securities. Debt
Warrants will be issued under warrant agreements with a warrant agent
designated in the prospectus supplement. The following summary of provisions of
the warrant agreement and form of Debt Warrant is not complete and is subject
to, and is qualified in its entirety by reference to, all the provisions of the
warrant agreement and the Debt Warrant. Any warrant agreement will be filed as
an exhibit to or incorporated by reference in the Registration Statement.
If Debt Warrants are offered, the prospectus supplement will describe the
terms of the Debt Warrants and the warrant agreement relating to the Debt
Warrants, including the following:
o the offering price;
o the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the Debt Warrants;
o the currency or currency unit in which the price for the Debt Warrants
may be payable;
o if applicable, the designation and terms of the securities with which the
Debt Warrants are issued and the number of Debt Warrants issued with each
such security;
o if applicable, the date on and after which the Debt Warrants and the
related securities will be separately transferable;
o the principal amount of debt securities purchasable upon exercise of a
Debt Warrant and the price at which, and currency or currency units based
on or relating to currencies in which, the principal amount of debt
securities may be purchased upon such exercise;
o the dates the right to exercise the Debt Warrants will commence and
expire and if the Debt Warrants are not continuously exercisable any
dates the Debt Warrants are not exercisable;
o if applicable, a discussion of certain Federal income tax consequences;
o whether the Debt Warrants or related securities will be listed on any
securities exchange;
o whether the Debt Warrants will be issued in global or definitive form;
and
o the warrant agent.
Description of Universal Warrants
We may issue warrants ("Universal Warrants") to buy or sell securities of
an entity unaffiliated with us, to buy a basket of such securities, to buy an
index or indices of securities or any combination of those securities, to buy
or sell currencies or currency units, or to buy and sell commodities
(collectively, the "Exercise Items").
Universal Warrants may be issued independently or together with other
securities offered by any prospectus supplement and may be attached to or
separate from the other securities. The Universal Warrants will be issued under
warrant agreements we will enter into with a warrant agent who will be
designated in the prospectus supplement. The following summary of certain
provisions of the form of Universal Warrant agreement and the Universal
Warrants is not complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the Universal Warrant agreement. Any
Universal Warrant agreement will be filed as an exhibit to or incorporated by
reference in the registration statement.
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If Universal Warrants are offered, the prospectus supplement will describe
the terms of the Universal Warrants and the warrant agreement, including the
following:
o the offering price;
o the title and aggregate number of such Universal Warrants;
o the nature and amount of the Exercise Items that such Universal Warrants
represent the right to buy or sell;
o whether the Universal Warrants are put warrants or call warrants;
o the price at which the Exercise Item may be purchased or sold and the
procedures and conditions relating to exercise;
o whether the exercise price or the Universal Warrant may be paid in cash
or by exchange of the Exercise Item or both;
o the dates the right to exercise the Universal Warrants will commence and
expire;
o if applicable, a discussion of certain Federal income tax consequences;
o whether the Universal Warrants or related securities will be listed on
any securities exchange;
o whether the Universal Warrants will be issued in global or definitive
form;
o the warrant agent; and
o any other terms of the Universal Warrants.
Modification
We and the warrant agent may amend the terms of any warrant agreement and
the warrants without the consent of the holders for the purpose of curing any
ambiguity or correcting any inconsistent provision therein or in any other
manner we deem necessary or desirable and which will not adversely affect the
interests of the holders in any respect. In addition, we may amend the warrant
agreement and the terms of the warrants with the consent of the owners of a
majority of the outstanding unexercised warrants affected. However, any
modification to the warrants cannot change the exercise price, reduce the
amounts receivable upon exercise cancellation or expiration, shorten the time
period during which the warrants may be exercised or otherwise materially and
adversely affect the rights of the owners of the warrants or reduce the
percentage of outstanding warrants required to modify or amend the warrant
agreement or the terms of the warrants, without the consent of the affected
owners.
Enforceability of Rights of Warrantholders; Governing Law
The warrant agent will act solely as our agent and will not assume any
obligation or relationship of agency or trust with the holders of the Warrants.
Any record holder or beneficial owner of a warrant may, without anyone else's
consent, enforce by appropriate legal action, on its own behalf, its right to
exercise the warrant in the manner provided therein or in the warrant
agreement. A warrantholder will not be entitled to any of the rights of a
holder of the debt securities or other securities purchasable upon the exercise
of the warrant before exercising the warrant.
Unsecured Obligations
The warrants are our unsecured contractual obligations and will rank
equally with all of our other unsecured contractual obligations and our
unsecured and unsubordinated debt. Since most of our assets are owned by our
subsidiaries, our rights and the rights of our creditors, including
warrantholders, to participate in the distribution of assets of any subsidiary
upon that subsidiary's liquidation or recapitalization will be subject to the
prior claims of that subsidiary's creditors.
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DESCRIPTION OF UNITS
Units will consist of one or more warrants and debt securities or any
combination thereof. If Units are offered, the prospectus supplement will
describe the terms of the Units, including the following:
o all terms of Units and of the warrants and debt securities, or any
combination thereof, comprising the Units, including whether and under
what circumstances the securities comprising the Units may or may not be
traded separately;
o a description of the terms of any agreement to be entered into between us
and a bank or trust company as unit agent governing the Units; and
o a description of the provisions for the payment, settlement, transfer or
exchange of the Units.
DESCRIPTION OF PREFERRED STOCK
General
We have 100,000,000 shares of preferred stock authorized and may issue
such preferred stock in one or more series, each with such preferences,
designations, limitations, conversion rights and other rights as we may
determine. We have designated:
(a) 3,000,000 shares of ESOP Convertible Preferred Stock, Series C (the
"ESOP Preferred Stock") of which 1,887,729 shares were issued and outstanding
at March 31, 1999;
(b) 35,045 shares of 7% Cumulative Redeemable Preferred Stock, Series B
(the "Series B Preferred Stock"), of which 8,771 shares were issued and
outstanding at March 31, 1999; and
(c) 20,000,000 shares of $2.50 Cumulative Convertible Preferred Stock
Series BB (the "Series BB Preferred Stock"), of which 5,539 shares were issued
and outstanding at March 31, 1999.
The Preferred Stock
General. Any preferred stock sold pursuant to this prospectus will have
the general dividend, voting and liquidation preference rights stated below
unless otherwise provided in the prospectus supplement. Reference is made to
the prospectus supplement for specific terms, including, where applicable:
o the title and stated value of the preferred stock;
o the aggregate number of shares of preferred stock offered;
o the price at which the preferred stock will be issued;
o the dividend rates or method of calculation, the dividend period and the
dates dividends will be payable;
o whether dividends will be cumulative or noncumulative, and if cumulative,
the date the dividends will begin to cumulate;
o the dates the preferred stock will be subject to redemption at our
option, and any redemption terms;
o any mandatory redemption or sinking fund provisions;
o any rights on the part of the stockholder or us to convert the preferred
stock into shares of another security; and
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o any additional voting, liquidation, preemptive and other rights,
preferences, privileges, limitations and restrictions.
The description of certain provisions of the preferred stock stated below
and in the prospectus supplement is not complete and is qualified in its
entirety by reference to the description in our Amended and Restated
Certificate of Incorporation, which will describe the terms of the offered
preferred stock and be filed with the SEC at or before the time of sale of that
preferred stock.
In addition, we may elect to offer depositary shares evidenced by
depository receipts representing a fractional interest in a share of a
particular series of the preferred stock issued and deposited with a
Depositary.
The preferred stock ranks senior to our common stock as to the payment of
dividends and the distribution of our assets on liquidation, dissolution and
winding up. The dividend and liquidation preference rights of the preferred
stock relative to any existing or future series of our preferred stock will be
stated in the prospectus supplement.
The preferred stock, when issued, will be fully paid and nonassessable.
Dividends. The holders of the preferred stock will be entitled to receive
when, as and if declared by us, cash dividends at such rates as will be
specified in the prospectus supplement. All dividends will be paid out of our
funds that are legally available for such purpose. We will not pay dividends on
our other shares nor will we redeem or otherwise acquire for any other
consideration or pay into any sinking fund if dividends on any series of
preferred stock are in arrears.
Voting. The holders of preferred stock will not have voting rights, except
as required by applicable law or as specifically approved by us and described
in the prospectus supplement, with regard to matters submitted to a general
vote of our stockholders.
Liquidation Preference. In the event of our voluntary or involuntary
liquidation, dissolution or winding up, the holders of any series of preferred
stock will be entitled to receive, after distributions to holders of any series
or class of our capital stock, as may be stated in the prospectus supplement,
an amount equal to the appropriate stated or liquidation value of the shares of
the series plus an amount equal to accrued and unpaid dividends, if any,
through the date of the payment. If the assets and funds to be distributed
among the holders of such preferred stock will be insufficient to permit the
payment to such holders of the full amount due, then the holders of the
preferred stock will share ratably in any distribution of our assets in
proportion to the amounts which otherwise would be payable on the shares held
by them upon the distribution if all amounts payable on the shares were paid in
full.
The following summary of the ESOP Preferred Stock, Series B Preferred
Stock and Series BB Preferred Stock is qualified in its entirety by reference
to the description of these securities contained in our Amended and Restated
Certificate of Incorporation.
ESOP Preferred Stock
All shares of ESOP Preferred Stock are held by the trustee under the
NationsBank Corporation Retirement Savings Plan (the "ESOP"). The ESOP
Preferred Stock ranks senior to our common stock, but ranks junior to the
Series B Preferred Stock and Series BB Preferred Stock as to dividends and
distribution on liquidation. Shares of the ESOP Preferred Stock are convertible
into common stock at a conversion rate of 1.68 shares of common stock per share
of ESOP Preferred Stock, subject to certain customary anti-dilution
adjustments.
Preferential Rights. The ESOP Preferred Stock does not have preemptive or
preferential rights to purchase or subscribe for shares of our capital stock of
any class and is not subject to
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any sinking fund obligations or other obligations to repurchase or retire the
series, except as discussed below.
Dividends. The ESOP Preferred Stock is entitled to an annual dividend,
subject to certain adjustments, of $3.30 per share, payable semiannually.
Unpaid dividends accumulate on the date they first became payable, without
interest. While any shares of ESOP Preferred Stock are outstanding, we may not
declare, pay or set apart for payment any dividend on any other series of stock
ranking equally with the ESOP Preferred Stock as to dividends unless declared
and paid, or set apart for payment like dividends on the ESOP Preferred Stock
for all dividend payment periods ending on or before the dividend payment date
for such parity stock, ratably in proportion to their respective amounts of
accumulated and unpaid dividends. We generally may not declare, pay or set
apart for payment any dividends, except for, among other things, dividends
payable solely in shares of stock ranking junior to the ESOP Preferred Stock as
to dividends or upon liquidation, or, make any other distribution on, or make
payment on account of the purchase, redemption or other retirement of, any
other class or series of our capital stock ranking junior to the ESOP Preferred
stock as to dividends or upon liquidation, until full cumulative dividends on
the ESOP Preferred Stock have been declared and paid or set apart for payment
when due.
Voting Rights. The holder of the ESOP Preferred Stock is entitled to vote
on all matters submitted to a vote of the holders of common stock and votes
together with the holders of common stock as one class. Except as otherwise
required by applicable law, the holder of the ESOP Preferred Stock has no
special voting rights. To the extent that the holder of the shares is entitled
to vote, each share is entitled to the number of votes equal to the number of
shares of common stock into which the shares of ESOP Preferred Stock could be
converted on the record date for determining the stockholders entitled to vote,
rounded to the nearest whole vote.
Distributions. In the event of our voluntary or involuntary dissolution,
liquidation or winding-up, the holder of the ESOP Preferred Stock will be
entitled to receive out of our assets available for distribution to
stockholders, subject to the rights of the holders of any Preferred Stock
ranking senior to or equally with the ESOP Preferred Stock as to distributions
upon liquidation, dissolution or winding-up but before any amount will be paid
or distributed among the holders of common stock or any other shares ranking
junior to the ESOP Preferred Stock as to such distributions, liquidating
distributions of $42.50 per share plus all accrued and unpaid dividends thereon
to the date fixed for distribution. If, upon our voluntary or involuntary
dissolution, liquidation or winding-up, the amounts payable on ESOP Preferred
Stock and any other stock ranking equally therewith as to any such distribution
are not paid in full, the holder of the ESOP Preferred Stock and the other
stock will share ratably in any distribution of assets in proportion to the
full respective preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which it is entitled, the
holder of the ESOP Preferred Stock will not be entitled to any further
distribution of our assets. Any merger, consolidation or purchase or sale of
assets by us will not be deemed to be a dissolution, liquidation or winding-up
of our affairs.
Redemption. The ESOP Preferred Stock is redeemable, in whole or in part,
at our option, at any time. The redemption price for the shares of the ESOP
Preferred Stock, which may be paid in cash or shares of common stock, will be
$42.50 per share. The redemption price also must include all accrued and unpaid
dividends to the date of redemption. If the ESOP Preferred Stock is treated as
Tier 1 capital for bank regulatory purposes, the approval of the Federal
Reserve Board may be required to redeem the ESOP Preferred Stock.
In addition, we are required to redeem shares of the ESOP Preferred Stock
at the option of the holder of the shares to the extent necessary either to
provide for distributions required to be made under the ESOP or to make
payments of principal, interest or premium due and payable on any indebtedness
incurred by the holder of the shares for the benefit of the ESOP.
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Series B Preferred Stock
Preferential Rights. We may, without the consent of holders of Series B
Preferred Stock, issue preferred stock with superior or equal rights or
preferences. The shares of the Series B Preferred Stock rank prior to the ESOP
Preferred Stock and the common stock.
Dividends. Holders of shares of Series B Preferred Stock are entitled to
receive, when and as declared by our Board cumulative cash dividends at an
annual dividend rate per share of 7% of the stated value thereof, out of any
funds legally available for such purpose. The dividend is payable quarterly.
Dividends on Series B Preferred Stock are cumulative, and we cannot declare or
pay cash dividends on any shares of common stock unless full cumulative
dividends on the Series B Preferred Stock have been paid or declared and funds
sufficient for the payment have been set apart.
Voting Rights. Each share of Series B Preferred Stock has equal voting
rights, share for share, with each share of our common stock.
Distributions. In the event of our dissolution, liquidation or winding up,
the holders of Series B Preferred Stock are entitled to receive, after payment
of the full liquidation preference on shares of any class of preferred stock
ranking superior to the Series B Preferred Stock, but before any distribution
on shares of our common stock, liquidating dividends of $100 per share plus
accumulated dividends.
Redemption. Shares of Series B Preferred Stock are redeemable, in whole or
in part, at the option of the holders thereof, at the redemption price of $100
per share plus accumulated dividends, provided that (i) full cumulative
dividends have been paid, or declared and funds sufficient for payment set
apart, upon any class or series of preferred stock ranking superior to Series B
Preferred Stock; and (ii) are not then in default or arrears on any sinking
fund or analogous fund or call for tenders obligation or agreement for the
purchase or any class or series of preferred stock ranking superior to the
Series B Preferred Stock.
Series BB Preferred Stock
Preferential Rights. The shares of Series BB Preferred Stock rank before
Series B Preferred Stock, ESOP Preferred Stock and common stock as to dividends
and upon liquidation.
Dividends. Holders of the Series BB Preferred Stock are entitled to
receive, when and as declared by our Board, cash dividends at the rate of $2.50
per annum per share, out of our assets legally available for payment. Dividends
are payable quarterly on January 1, April 1, July 1, and October 1 of each
year. Dividends on the Series BB Preferred Stock are cumulative from January 1,
1998.
Voting Rights. Holders of Series BB Preferred Stock have no voting rights
except as required by law and, if any quarterly dividend payable on the Series
BB Preferred Stock is in arrears, the holders of Series BB Preferred Stock will
be entitled to vote together with the holders of our common stock at our next
meeting of stockholders and at each subsequent meeting of stockholders unless
all dividends in arrears have been paid or declared and set apart for payment
before the date of such meeting. In those cases where holders of Series BB
Preferred Stock are entitled to vote, each holder will be entitled to cast the
number of votes equal to the number of whole shares of our common stock into
which his or her Series BB Preferred Stock is then convertible.
Conversion Rights. Subject to the terms and conditions stated below, the
holders of shares of Series BB Preferred Stock have the right, at their option,
to convert such shares at any time through September 16, 1999 into fully paid
and nonassessable shares of common stock at the rate of 6.17215 shares of our
common stock for each share of Series BB Preferred Stock surrendered for
conversion. The conversion rate is subject to adjustment from time to time.
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Distributions. In the event of our voluntary or involuntary liquidation,
dissolution or winding up, the holders of Series BB Preferred Stock will be
entitled to receive out of our assets available for distribution to
stockholders an amount equal to $25 per share plus an amount equal to accrued
and unpaid dividends to and including the date of such distribution, and no
more, before any distribution will be made to the holders of any class of our
stock ranking junior to the Series BB Preferred Stock as to the distribution of
assets. Any merger, consolidation or purchase or sale of assets by us will not
be deemed a liquidation, dissolution or winding up of our affairs. Shares of
Series BB Preferred Stock are not subject to a sinking fund.
Redemption. On June 23, 1999, our board of directors voted to redeem the
Series BB Preferred Stock on October 1, 1999, at a redemption price of $25 per
share plus accrued and unpaid dividends to the redemption date.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, offer fractional shares of preferred stock, rather
than full shares of such securities. If such option is exercised, we will issue
receipts for depositary shares to the public. Each receipt will represent a
fractional interest in a share of a particular series of the preferred stock,
as stated in a prospectus supplement.
The particular terms of the preferred stock offered and the extent, if
any, to which the general provisions may apply to the depositary shares will be
described in the prospectus supplement. The general descriptions below and in
any prospectus supplement are not complete and are subject to and qualified in
their entirety by reference to the deposit agreement and the depositary
receipts, the forms of which are incorporated by reference in the Registration
Statement and the definitive forms of which will be filed with the SEC at the
time of sale of the depositary shares.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us having its principal office in the United States
and having a combined capital and surplus of at least $5,000,000 (the
"Depositary"). Subject to the terms of the deposit agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of
a share of preferred stock represented by such Depositary Share, to all the
rights and preferences of the preferred stock represented thereby, including
dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock in accordance
with the terms of the offering.
Pending the preparation of definitive engraved depositary receipts, the
Depositary may, upon our written order, issue temporary depositary receipts.
The temporary depositary receipts will be substantially identical to, and will
have all rights of, the definitive depositary receipts but will not be in
definitive form. Definitive depositary receipts will be prepared thereafter and
temporary depositary receipts will be exchanged for definitive depositary
receipts at our expense.
Upon the surrender of depositary receipts at the principal office of the
Depositary and upon payment by the holder of the charges provided in the
deposit agreement and subject to the terms thereof, a holder of depositary
shares is entitled to have the Depositary deliver to such holder the number of
full shares of the preferred stock underlying the depositary shares evidenced
by the surrendered depositary receipts. A holder of shares of preferred stock
thus withdrawn will not thereafter be entitled to receive depositary shares in
excess of the number of depositary
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shares representing the number of full shares of preferred stock to be
withdrawn. The Depositary will deliver to such holder at the same time a new
depositary receipt evidencing such excess number of depositary shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received pursuant to the preferred stock to the record holders of
depositary shares relating to that preferred stock in proportion to the number
of depositary shares owned by the holders. However, the Depositary will
distribute only the amount that can be distributed without attributing to any
holder of depositary shares a fraction of one cent. Any balance that is not
distributed will be added to and treated as part of the next sum received by
the Depositary for distribution to record holders.
If there is a distribution other than in cash, the Depositary will
distribute property it receives to the record holders of depositary shares who
are entitled thereto, unless the Depositary determines that it is not feasible
to make such distribution, in which case the Depositary, with our approval, may
sell such property and distribute the net proceeds to such holders.
Redemption of Depositary Shares
If a series of preferred stock depositary shares is subject to redemption,
the depositary shares will be redeemed from the proceeds received by the
Depositary from the redemption, in whole or in part, of that series of
preferred stock held by the Depositary. The Depositary will mail notice of
redemption at least 30 and not more than 45 days before the date fixed for
redemption to the record holders of the depositary shares to be redeemed at
their addresses appearing in the Depositary's books. The redemption price per
depositary share will be equal to the applicable fraction of the redemption
price per share payable on such series of the preferred stock. Whenever we
redeem preferred stock held by the Depositary, the Depositary will redeem as of
the same redemption date the number of depositary shares representing the
preferred stock redeemed. If less than all the depositary shares are redeemed,
the depositary shares redeemed will be selected by lot or pro rata as
determined by the Depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holder of the depositary shares will cease, except the right to receive the
monies payable upon redemption and any money or other property the holders of
such depositary shares were entitled to receive upon such redemption upon
surrender to the Depositary of the depositary receipts evidencing the
depositary shares.
Voting the Preferred Stock
Any voting rights of holders of the depositary shares are directly
dependent on the voting rights of the underlying voting preferred stock. Upon
receipt of notice of any meeting at which the holders of the preferred stock
held by the Depositary are entitled to vote, the Depositary will mail the
information contained in the notice of meeting to the record holders of the
depositary shares relating to such preferred stock. Each record holder of
depositary shares on the record date, which will be the same date as the record
date for the preferred stock, will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of preferred stock
underlying such holder's depositary shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of preferred stock underlying the
depositary shares in accordance with such instructions, and we will agree to
take all action which may be deemed necessary by the Depositary to enable the
Depositary to do so. The Depositary will abstain from voting preferred stock if
it does not receive specific instructions from the holders of depositary shares
relating to such preferred stock.
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Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between us and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless the amendment has been approved by the record holders
of at least a majority of the depositary shares then outstanding. Either we or
the Depositary may terminate a Deposit Agreement if all outstanding depositary
shares have been redeemed or if there has been a final distribution in respect
of the preferred stock in connection with our liquidation, dissolution or
winding up.
Changes of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges
of the Depositary in connection with the initial deposit of the preferred stock
and any redemption of the preferred stock. Holders of depositary shares will
pay other transfer and other taxes and governmental charges and such other
charges as are expressly provided in the Deposit Agreement to be for their
accounts.
Miscellaneous
The Depositary will forward to the holders of depositary shares all of our
reports and communications which are delivered to the Depositary and which we
are required to furnish to the holders of the preferred stock.
We, and the Depositary, will not be liable if we are prevented or delayed
by law or any circumstance beyond our control in performing our obligations
under the Deposit Agreement. All of our obligations under the Deposit Agreement
are limited to performance in good faith of our respective duties thereunder
and neither of us will be obligated to prosecute or defend any legal proceeding
in respect of any depositary shares or preferred stock unless provided with
satisfactory indemnity. We, and the Depositary, may rely upon written advice of
counsel or accountants, or information provided by persons presenting preferred
stock for deposit, holders of depositary shares or other persons believed to be
competent and on documents believed to be genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the Depositary, any
resignation or removal will take effect only upon the appointment of a
successor Depositary and the successor Depositary's acceptance of such
appointment. Any successor Depositary must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $5,000,000.
DESCRIPTION OF COMMON STOCK
The following summary of our common stock is qualified in its entirety by
reference to the description of the common stock incorporated herein by
reference.
General
We are authorized to issue 5,000,000,000 shares of common stock, of which
approximately 1.7 billion shares were outstanding on March 31, 1999. The common
stock trades on the New York Stock Exchange and on the Pacific Exchange under
the symbol "BAC." The common stock is also listed on the London Stock Exchange,
and certain shares are listed on the Tokyo Stock Exchange. As of March 31,
1999, 308 million shares were reserved for issuance in connection with various
of our employee and director benefit plans and our Dividend Reinvestment and
Stock Purchase Plan and the conversion of our outstanding convertible
securities and for other
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purposes. After taking into account the reserved shares, there were
approximately 2.9 billion authorized shares of common stock available for
issuance as of March 31, 1999.
Voting and Other Rights
Holders of common stock are entitled to one vote per share. In general, a
majority of votes cast on a matter is sufficient to take action upon routine
matters. However, (i) amendments to our Amended and Restated Certificate of
Incorporation must be approved by the affirmative vote of the holders of a
majority of the outstanding shares of each class entitled to vote thereon as a
class, and (ii) a merger or dissolution or the sale of all or substantially all
of our assets, must be approved by the affirmative vote of the holders of a
majority of the voting power of the outstanding voting shares. Directors are
elected by a plurality of the votes cast, and stockholders do not have the
right to cumulate their votes in the election of directors.
In the event of our liquidation, holders of common stock will be entitled
to receive pro rata any assets legally available for distribution to
stockholders, subject to any prior rights of any preferred stock then
outstanding.
Our common stock does not have any preemptive rights, redemption
privileges, sinking fund privileges or conversion rights. All the outstanding
shares of common stock are, and upon proper conversion of any preferred stock,
all of the shares of our common stock into which such shares are converted will
be, validly issued, fully paid and nonassessable.
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and
registrar for our common stock.
Dividends
The holders of our common stock are entitled to receive dividends or
distributions as our Board may declare out of funds legally available for such
payments. Our payment of dividends is subject to the restrictions of Delaware
law applicable to the declaration of dividends by a corporation. A corporation
generally may not authorize and pay dividends if, after giving effect thereto,
it would be unable to meet its debts as they become due in the usual course of
business or if the corporation's total assets would be less than the sum of its
total liabilities plus the amount that would be needed, if it were to be
dissolved at the time of distribution, to satisfy claims upon dissolution of
stockholders who have preferential rights superior to the rights of the holders
of its common stock. In addition, the payment of dividends to stockholders is
subject to any prior rights of outstanding preferred stock. Stock dividends, if
any are declared, may be paid from our authorized but unissued shares.
REGISTRATION AND SETTLEMENT
The Depository Trust Company
Unless otherwise specified in a prospectus supplement, the debt securities
we offer will be issued only in book-entry form represented by global
securities in registered form (a "Global Security"). The Global Security will
be held through DTC, as depositary, and registered in the name of Cede & Co.,
as nominee of DTC. Accordingly, Cede & Co. will be the holder of record of the
securities.
Beneficial interests in the Global Security will be shown on, and
transfers will be effected through, records maintained by DTC. Transfers of
ownership interests in the securities will be accomplished by making entries in
DTC participants' books acting on behalf of beneficial owners. Beneficial
owners of these securities will not receive certificates representing their
ownership interest, unless the use of the book-entry system is discontinued.
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So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be the sole holder of
the securities represented thereby for all purposes under the applicable
Indenture or warrant or unit agreement. Except as otherwise provided below, the
beneficial owners of the securities will not be entitled to receive physical
delivery of the certificated security and will not be considered the holders
for any purpose under the applicable Indenture or agreement. Accordingly, each
beneficial owner must rely on the procedures of DTC and, if such beneficial
owner is not a DTC participant, on the procedures of the DTC participant
through which such beneficial owner owns its interest in order to exercise any
rights of a holder under such security or the applicable Indenture or
agreement. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. Such
limits and laws may impair the ability to transfer beneficial interests in the
securities.
The following is based on information furnished by DTC:
DTC will act as securities depository for certain securities. Those
securities will be issued as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One Global Security will be
issued for all of the principal amount of the securities, but if any series
exceeds an aggregate principal amount of $200,000,000, certificates will be
issued in increments of up to $200,000,000.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
DTC holds securities that its participants deposit with it. DTC also
facilitates the settlement among its participants of securities
transactions, such as transfers and pledges, in deposited securities
through electronic book-entry changes in the participants' accounts,
thereby eliminating the need for physical movement of securities
certificates. Direct participants of DTC include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and
the National Association of Securities Dealers, Inc. Access to DTC's system
is also available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial relationship
with a direct participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
Purchases of securities under DTC's system must be made by or through
direct participants, which will receive a credit for the securities on
DTC's records. The ownership interest of each actual purchaser, the
beneficial owner, of each security represented by a Global Security is in
turn to be recorded on the records of direct and indirect participants.
Beneficial owners will not receive written confirmation from DTC of their
purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the direct or indirect participants
through which the beneficial owner entered into the transaction. The
participants will remain responsible for keeping account of their holdings
on behalf of their customers.
Conveyance of notices and other communications by DTC to its direct
participants, by direct participants to indirect participants, and by
direct and indirect participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the
securities. DTC assigns its right to consent or vote to its direct
participants.
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Principal and any premium or interest payments on the securities will be
made in immediately available funds to DTC. DTC's practice is to credit
direct participants' accounts on the applicable payment date in accordance
with their respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payment on such date. Payments by
participants to beneficial owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participant and not of DTC or any other
party, subject to any statutory or regulatory requirements that may be in
effect from time to time. Payment of principal and any premium or interest
to DTC is our responsibility, disbursement of such payments to direct
participants is the responsibility of DTC, and disbursement of such
payments to the beneficial owners is the responsibility of the direct or
indirect participant.
Redemption notices will be sent to Cede & Co. If less than all of the
securities are being redeemed, DTC's practice is to determine by lot the
amount of the interest of each direct participant in such issue to be
redeemed.
DTC may discontinue providing its services as securities depository for
the securities at any time by giving us reasonable notice. Under such
circumstances, if a successor securities depository is not obtained,
certificated securities are required to be printed and delivered.
Management of DTC is aware that some computer applications and systems
for processing data that are dependent upon calendar dates, including dates
before, on, and after January 1, 2000, may encounter "Year 2000 problems."
DTC has informed its participants and other members of the financial
community that it has developed and is implementing a program so that its
systems, which relate to the timely payment of distributions (including
principal and interest payments) to securityholders, book-entry deliveries
and settlement of trades within DTC, continue to function appropriately.
This program includes a technical assessment and a remediation plan, each
of which is complete. Additionally, DTC's plan includes a testing phase,
which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly is also
dependent upon other parties, such as issuers and their agents, as well as
the DTC participants, third party vendors from whom DTC licenses software
and hardware and on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service
providers. DTC has informed the financial community that it is contacting,
and will continue to contact, third party vendors from whom DTC acquires
services to: (a) impress upon them the importance of such services being
Year 2000 compliant; and (b) determine the extent of their efforts for Year
2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of developing such contingency plans as it
deems appropriate.
The information in this section concerning DTC and DTC's system has been
obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
Cedelbank and Euroclear
Securities of a series issued in book-entry form and sold or traded
outside the United States may be represented by one or more Global Securities
held through Cedelbank, societe anonyme ("Cedelbank"), or Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator" or "Euroclear"), European international clearing systems.
Cedelbank and Euroclear hold omnibus positions on behalf of Cedelbank
participants and Euroclear participants, respectively, on the books of their
respective depositaries, which in turn hold such positions in customers'
securities accounts in the depositaries' names on the books of DTC.
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<PAGE>
Transfers between Cedelbank participants and Euroclear participants occur
in compliance with their rules and operating procedures. Cross-market transfers
between persons holding directly or indirectly through DTC in the United
States, on the one hand, and directly or indirectly through Cedelbank
participants or Euroclear participants, on the other, will be handled by DTC in
accordance with DTC rules on behalf of a European international clearing system
by its depositary; however, cross-market transactions will require delivery of
instructions to the European international clearing system by the counterparty
in such system in accordance with its rules and procedures and within its
established deadlines. A European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its
depositary to take action to carry out final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Cedelbank participants and Euroclear participants may not deliver
instructions directly to the depositaries.
Because of time-zone differences, credits for securities in Cedelbank or
Euroclear as a result of a transaction with a DTC participant will be made
during the subsequent securities settlement processing, and will be dated the
business day following the DTC settlement date; those credits or any
transactions in those securities settled during processing will be reported to
the relevant Cedelbank participant or Euroclear participant on that business
day. Cash received in Cedelbank or Euroclear as a result of sales of securities
by or through a Cedelbank participant or a Euroclear participant to a DTC
participant will be received with value on the DTC settlement date but will be
available in the relevant Cedelbank or Euroclear cash account only as of the
business day following settlement in DTC.
Cedelbank is incorporated under the laws of Luxembourg as a depositary.
Cedelbank holds securities for its participating organizations and facilitates
the clearance and settlement of securities transactions between its
participants through electronic book-entry changes in accounts of those
participants, thereby eliminating the need for physical movement of
certificates. Transactions may be settled by Cedelbank in any of 28 currencies,
including United States dollars. Cedelbank provides to its participants
services for safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and borrowing.
Cedelbank interfaces with domestic markets in several countries. As a
depository, Cedelbank is subject to regulation by the Luxembourg Monetary
Institute. Cedelbank participants consist of recognized financial institutions
around the world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations
and may include the underwriters or agents with respect to a particular series
of securities. Indirect access to Cedelbank is also available to other entities
that clear through or maintain a custodial relationship with a Cedelbank
participant.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System and to clear and settle transactions
between Euroclear participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions now may be settled by Euroclear in any of 32 currencies,
including United States dollars. The Euroclear System includes various other
services, including securities lending and borrowing and interfaces with
domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by the Euroclear Operator, under contract with Euroclear Clearance
System, S.C., a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Cooperative. The Cooperative establishes policy for
the Euroclear System on behalf of Euroclear participants. Euroclear
participants include banks (including central banks), securities brokers and
dealers and other professional financial intermediaries and may include the
underwriters or agents for a particular series of
30
<PAGE>
securities. Indirect access to the Euroclear System is also available to other
firms that clear through or maintain a custodial relationship with a Euroclear
participant.
The Euroclear Operator is the Brussels branch of a New York banking
corporation that is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Federal Reserve Board and the New York State
Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear
and the related Operating Procedures of the Euroclear Systems and applicable
Belgian law (collectively, the "Terms and Conditions"). The Terms and
Conditions govern transfers of securities and cash within the Euroclear System,
withdrawal of securities and cash from the Euroclear System and receipts of
payments with respect to securities in the Euroclear System. All securities in
the Euroclear System are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
participants and has no record of or relations with persons holding through
Euroclear participants.
Distributions for securities of a series held through Cedelbank or
Euroclear will be credited to the cash accounts of Cedelbank participants or
Euroclear participants in accordance with the relevant system's rules and
procedures. Distributions are subject to tax reporting in accordance with
relevant United States tax laws and regulations. The applicable prospectus
supplement will describe selected income tax consequences to foreign investors.
Cedelbank or the Euroclear Operator, will take any other action permitted to be
taken by a holder of securities under the applicable Indenture, warrant
agreement or unit agreement on behalf of a Cedelbank participant or a Euroclear
participant only in accordance with its relevant rules and procedures and
subject to its respective depositary's ability to carry out those actions on
its behalf through DTC.
Although Cedelbank and Euroclear have established these procedures to
facilitate transfers of applicable securities among participants of DTC,
Cedelbank and Euroclear, they are under no obligation to perform or continue to
perform those procedures, and those procedures may be discontinued at any time.
31
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at
the Public Reference Room of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. You may also inspect our filings at
the regional offices of the SEC located at 7 World Trade Center, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 or over the Internet at the SEC's home page at
http://www.sec.gov. You can also inspect reports and other information we file
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
The SEC allows us to incorporate by reference the information we file with
it, which means:
o incorporated documents are considered part of this prospectus;
o we can disclose important information to you by referring you to those
documents; and
o information that we file with the SEC will automatically update and
supersede this incorporated information.
We incorporate by reference the documents listed below which were filed
with the SEC under the Exchange Act:
o our annual report on Form 10-K for the year ended December 31, 1998;
o our quarterly report on Form 10-Q for the period ended March 31, 1999;
o our current reports on Form 8-K dated January 19, 1999, February 2, 1999,
April 19, 1999, April 28, 1999, June 9, 1999, June 23, 1999 and July 8,
1999; and
o the description of our common stock which is contained in our
registration statement filed pursuant to Section 12 of the Exchange Act,
as modified on our current report on Form 8-K dated September 25, 1998.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of this prospectus:
o reports filed under Sections 13(a) and (c) of the Exchange Act;
o definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meetings;
and
o any reports filed under Section 15(d) of the Exchange Act.
You should assume that the information appearing in this prospectus is
accurate as of the date of this prospectus only. Our business, financial
position and results of operations may have changed since that date.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
John E. Mack
Senior Vice President
Bank of America Corporation
Corporate Treasury Division
NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 386-5972
32
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus and accompanying prospectus supplements contain or
incorporate statements that constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Those statements can be identified by the use of forward-looking language
such as "will likely result," "may," "are expected to," "is anticipated,"
"estimate," "projected," "intends to," or other similar words. Our actual
results, performance or achievements could differ materially from the results
expressed in, or implied by, those forward-looking statements. Those statements
are subject to certain risks and uncertainties, including but not limited to,
certain risks described in the prospectus supplement. When considering those
forward-looking statements, you should keep in mind these risks, uncertainties
and other cautionary statements made in this prospectus and the prospectus
supplement. You should not place undue reliance on any forward-looking
statement which speaks only as of the date made.
LEGAL OPINIONS
The legality of the securities will be passed upon for us by Smith Helms
Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the underwriters or
agents by Stroock & Stroock & Lavan LLP, New York, New York. As of the date of
this prospectus, certain members of Smith Helms Mulliss & Moore, L.L.P.,
beneficially owned approximately 160,000 shares of our common stock.
EXPERTS
Our consolidated financial statements incorporated by reference to our
Annual Report on Form 10-K for the year ended December 31, 1998 have been
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
auditing and accounting.
33
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Our affiliates, including Banc of America Securities LLC, will deliver this
prospectus for offers and sales in the secondary market.
You should rely only on the information incorporated by reference or provided
in this prospectus. Neither we, nor any underwriters or agents, have authorized
anyone to provide you with different information. We are not offering the
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of this document.
(BANK OF AMERICA LOGO)
$15,000,000,000
Debt Securities
Warrants
Units
Preferred Stock
Depositary Shares
Common Stock
------------------------------
PROSPECTUS
------------------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee ................................... $4,169,807
Printing and Engraving Expenses ................................... 335,000
Legal Fees and Expenses ........................................... 710,000
Accounting Fees and Expenses ...................................... 300,000
Blue Sky Fees and Expenses ........................................ 60,000
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's Fees and Expenses (including counsel fees) ......... 800,000
Rating Agency Fees and Expenses ................................... 850,000
Listing Fees ...................................................... 100,000
Miscellaneous ..................................................... 50,193
----------
$7,375,000
</TABLE>
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Subsection (b) of
Section 145 of the DGCL empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of
the capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in accordance with
the above standards, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which the action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 145 of the DGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith; and that indemnification provided by, or granted pursuant to,
Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled. Section 145 further empowers the
corporation to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the
II-1
<PAGE>
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liabilities under
Section 145 of the DGCL.
Section 102 (b) (7) of the DGCL provides that provisions in a
corporation's certificate of incorporation eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director shall not eliminate or limit
the liability of a director for (i) any breach of the director's duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not in
good faith or which involved intentional misconduct or a knowing violation of
the law; (iii) willful or negligent unlawful payment of a dividend or stock
purchase or redemption; or (iv) any transaction from which the director derived
an improper personal benefit.
The Restated Certificate of Incorporation of the Registrant prevents the
recovery by the Registrant of monetary damages against its directors to the
fullest extent permitted by the DGCL. In accordance with the provisions of the
DGCL, the Bylaws of the Registrant provide that, in addition to the
indemnification of directors and officers otherwise provided by the DGCL, the
Registrant shall, under certain circumstances, indemnify its directors,
executive officers and certain other designated officers against any and all
liability and litigation expense, including reasonable attorneys' fees, arising
out of their status or activities as directors and officers, except for
liability or litigation expense incurred on account of activities that were at
the time known or believed by such director or officer to be in conflict with
the best interests of the Registrant. Pursuant to such Bylaws and as authorized
by statute, the Registrant may also maintain insurance on behalf of its
directors and officers against liability asserted against such persons in such
capacity whether or not such directors or officers have the right to
indemnification pursuant to the Bylaws or otherwise.
In addition, pursuant to the Agreement and Plan of Reorganization dated as
of April 10, 1998 (the "Merger Agreement") between the Registrant and the
former BankAmerica Corporation ("old BankAmerica"), for six years after
September 30, 1998 (the date of the merger of old BankAmerica with and into the
Registrant (the "Merger")), the Registrant will indemnify directors, officers
and employees of old BankAmerica, NationsBank, or any of their respective
subsidiaries against certain liabilities in connection with such persons'
status as such or in connection with the Merger Agreement or any of the
transactions contemplated thereby. Pursuant to the Merger Agreement, the
Registrant will also, for six years after September 30, 1998 and with respect
to events occurring prior to the consummation of the Merger, honor all rights
to indemnification and limitations of liability existing in favor of the
foregoing persons as provided in the governing documents of NationsBank, old
BankAmerica or their respective subsidiaries.
Pursuant to the Merger Agreement, for six years after September 30, 1998,
the Registrant will also use its best efforts to cause the directors and
officers of old BankAmerica and NationsBank to be covered by a directors' and
officers' liability insurance policy with respect to acts or omissions
occurring prior to the consummation of the Merger.
The foregoing is only a general summary of certain aspects of Delaware law
dealing with indemnification of directors and officers and does not purport to
be complete. It is qualified in its entirety by reference to the relevant
statutes which contain detailed specific provisions regarding the circumstances
under which and the persons for whose benefit indemnification shall or may be
made.
In addition, certain sections of each of the forms of Underwriting or
Distribution Agreements filed as Exhibits hereto provide for indemnification of
the Registrant and its directors and officers by the underwriters or agents
against certain liabilities, including certain liabilities under
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<PAGE>
the 1933 Act. From time to time similar provisions have been contained in other
agreements relating to other securities of the Registrant.
Item 16. List of Exhibits
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Underwriting Agreement for Warrants and Units
1.5 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and
BankAmerica National Trust Company, as trustee, incorporated herein by
reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-57533)
4.2 Successor Trustee Agreement effective December 15, 1995, between
NationsBank Corporation and First Trust New York, National Association (now
U.S. Bank Trust National Association), as successor trustee to BankAmerica
National Trust Company, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-3 (Registration No. 333-7229)
4.3 First Supplemental Indenture dated as of September 18, 1998, among
NationsBank Corporation, NationsBank(DE) Corporation and U.S. Bank Trust
National Association, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Current Report on Form 8-K filed November 18, 1998
4.4 Form of Senior Registered Note
4.5 Form of Senior Medium-Term Note (Fixed Rate)
4.6 Form of Senior Medium-Term Note (Floating Rate)
4.7 Indenture dated as of January 1, 1995 between NationsBank Corporation and
The Bank of New York, as trustee, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-57533)
4.8 First Supplemental Indenture dated as of August 28, 1998, among NationsBank
Corporation, NationsBank(DE) Corporation and The Bank of New York,
incorporated herein by reference to Exhibit 4.8 of the Registrant's Current
Report on Form 8-K filed November 18, 1998
4.9 Form of Subordinated Registered Note
4.10 Form of Subordinated Medium-Term Note (Fixed Rate)
4.11 Form of Subordinated Medium-Term Note (Floating Rate)
4.12 Form of Certificate for Preferred Stock
4.13 Specimen Common Stock certificate
4.14 Form of Deposit Agreement
4.15 Form of Depositary Receipt
4.16 Form of Warrant Agreement for Universal Warrant (The form of such Warrant
Agreement with respect to each particular offering will be filed as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference)
4.17 Form of Warrant Agreement for Warrants Sold Alone (The form of such
Warrant Agreement with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference)
4.18 Form of Warrant Agreement for Warrants Sold Attached to Debt Securities (The
form of such Warrant Agreement with respect to each particular offering will be
filed as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference)
4.19 Form of Unit Agreement (The form of such Unit Agreement with respect to
each particular offering will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference)
4.20 Form of Put Warrant (included in Exhibit 4.16)
4.21 Form of Call Warrant (included in Exhibit 4.16)
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
4.22 Form of Unit Certificate (included in Exhibit 4.19)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities
being registered
12.1 Calculation of Ratio of Earnings to Fixed Charges, incorporated herein by
reference to Exhibit 12(a) of the Registrants' Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, filed May 17, 1999
12.2 Calculation of Ratio of Earnings to Fixed Charges and Preferred Dividends,
incorporated herein by reference to Exhibit 12(b) of the Registrants' Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, filed May 17, 1999
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the Delaware General Corporation Law, as amended, relating to
indemnification of directors and officers
</TABLE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,.represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%.change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or
II-4
<PAGE>
Section 15(d) of the 1934 Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent,.submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of
such issue.
The Registrant hereby undertakes (1) to use its best efforts to distribute
prior to the opening of bids, to prospective bidders, underwriters, and
dealers, a reasonable number of copies of a prospectus which at that time meets
the requirements of Section 10(a) of the 1933 Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the Registrant after the
opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the Registrant and no reoffering of such securities by the purchasers is
proposed to be made.
The Registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939, as amended (the "Act"), in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, North Carolina, on July 22, 1999.
BANK OF AMERICA CORPORATION
By: * HUGH L. MCCOLL, JR.
-----------------------------------
(Hugh L. McColl, Jr.)
Chairman and Chief Executive
Officer
Dated: July 22, 1999
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------------- ----------------------------------- --------------
<S> <C> <C>
* HUGH L. MCCOLL, JR. Chairman of the Board, Chief July 22, 1999
- --------------------------------- Executive Officer and Director
(Hugh L. McColl, Jr.) (Principal Executive Officer)
* JAMES H. HANCE, JR. Vice Chairman and Chief Financial July 22, 1999
- --------------------------------- Officer (Principal Financial
(James H. Hance, Jr.) Officer)
* MARC D. OKEN Executive Vice President and July 22, 1999
- --------------------------------- Principal Financial Executive
(Marc D. Oken) (Principal Accounting Officer)
* CHARLES W. COKER Director July 22, 1999
- ---------------------------------
(Charles W. Coker)
Director July , 1999
- ---------------------------------
(Timm F. Crull)
* ALAN T. DICKSON Director July 22, 1999
- ---------------------------------
(Alan T. Dickson)
* KATHLEEN F. FELDSTEIN Director July 22, 1999
- ---------------------------------
(Kathleen F. Feldstein)
* PAUL FULTON Director July 22, 1999
- ---------------------------------
(Paul Fulton)
* DONALD E. GUINN Director July 22, 1999
- ---------------------------------
(Donald E. Guinn)
* C. RAY HOLMAN Director July 22, 1999
- ---------------------------------
(C. Ray Holman)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------- ---------- --------------
<S> <C> <C>
* W.W. JOHNSON Director July 22, 1999
- ---------------------------------
(W.W. Johnson)
Director July , 1999
- ---------------------------------
(Walter E. Massey)
* RICHARD M. ROSENBERG Director July 22, 1999
- ---------------------------------
(Richard M. Rosenberg)
* O. TEMPLE SLOAN, JR. Director July 22, 1999
- ---------------------------------
(O. Temple Sloan, Jr.)
* MEREDITH R. SPANGLER Director July 22, 1999
- ---------------------------------
(Meredith R. Spangler)
Director July , 1999
- ---------------------------------
(A. Michael Spence)
* RONALD TOWNSEND Director July 22, 1999
- ---------------------------------
(Ronald Townsend)
* SOLOMON D. TRUJILLO Director July 22, 1999
- ---------------------------------
(Solomon D. Trujillo)
* JACKIE M. WARD Director July 22, 1999
- ---------------------------------
(Jackie M. Ward)
* VIRGIL R. WILLIAMS Director July 22, 1999
- ---------------------------------
(Virgil R. Williams)
* SHIRLEY YOUNG Director July 22, 1999
- ---------------------------------
(Shirley Young)
* By:/s/ PAUL J. POLKING
- ---------------------------------
(Paul J. Polking)
Attorney-in-Fact
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Underwriting Agreement for Warrants and Units
1.5 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and
BankAmerica National Trust Company, as trustee, incorporated herein by
reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-57533)
4.2 Successor Trustee Agreement effective December 15, 1995, between
NationsBank Corporation and First Trust New York, National Association (now
U.S. Bank Trust National Association), as successor trustee to BankAmerica
National Trust Company, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-3 (Registration No. 333-7229)
4.3 First Supplemental Indenture dated as of September 18, 1998, among
NationsBank Corporation, NationsBank(DE) Corporation and U.S. Bank Trust
National Association, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Current Report on Form 8-K filed November 18, 1998
4.4 Form of Senior Registered Note
4.5 Form of Senior Medium-Term Note (Fixed Rate)
4.6 Form of Senior Medium-Term Note (Floating Rate)
4.7 Indenture dated as of January 1, 1995 between NationsBank Corporation and
The Bank of New York, as trustee, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-57533)
4.8 First Supplemental Indenture dated as of August 28, 1998, among NationsBank
Corporation, NationsBank(DE) Corporation and The Bank of New York,
incorporated herein by reference to Exhibit 4.8 of the Registrant's Current
Report on Form 8-K filed November 18, 1998
4.9 Form of Subordinated Registered Note
4.10 Form of Subordinated Medium-Term Note (Fixed Rate)
4.11 Form of Subordinated Medium-Term Note (Floating Rate)
4.12 Form of Certificate for Preferred Stock
4.13 Specimen Common Stock certificate
4.14 Form of Deposit Agreement
4.15 Form of Depositary Receipt
4.16 Form of Warrant Agreement for Universal Warrant (The form of such Warrant
Agreement with respect to each particular offering will be filed as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference)
4.17 Form of Warrant Agreement for Warrants Sold Alone (The form of such
Warrant Agreement with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference)
4.18 Form of Warrant Agreement for Warrants Sold Attached to Debt Securities (The
form of such Warrant Agreement with respect to each particular offering will be
filed as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference)
4.19 Form of Unit Agreement (The form of such Unit Agreement with respect to
each particular offering will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference)
4.20 Form of Put Warrant (included in Exhibit 4.16)
4.21 Form of Call Warrant (included in Exhibit 4.16)
4.22 Form of Unit Certificate (included in Exhibit 4.19)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities
being registered
</TABLE>
<PAGE>
<TABLE>
<S> <C>
12.1 Calculation of Ratio of Earnings to Fixed Charges, incorporated herein by
reference to Exhibit 12(a) of the Registrants' Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, filed May 17, 1999
12.2 Calculation of Ratio of Earnings to Fixed Charges and Preferred Dividends,
incorporated herein by reference to Exhibit 12(b) of the Registrants' Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, filed May 17, 1999
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the Delaware General Corporation Law, as amended, relating to
indemnification of directors and officers
</TABLE>
EXHIBIT 1.1
[Debt Securities]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
------------, ----
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of _________________ between the Company and ____________,
as trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, each shall be deemed to
refer to such firm or firms.
1. Representations and Warranties. (a)The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Securities. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or Rule
434 under the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424 or Rule
434 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
herein
<PAGE>
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, and the Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
(ii) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture Act of
the Trustee or (B) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(b) Each Underwriter represents and agrees that it has not and will not,
directly or indirectly, offer, sell or deliver any of the Securities or
distribute the Final Prospectus or any other offering materials relating
to the Securities in or from any jurisdiction except under circumstances
that will, to the best of its knowledge and belief, result in compliance
with any applicable laws and regulations thereof and that, to the best of
its knowledge and belief, will not impose any obligations on the Company
except as set forth herein.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter,
2
<PAGE>
and each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto, the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule
II hereto, except that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto, less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates may be deposited with The
Depository Trust Company ("DTC") or a custodian of DTC and registered in the
name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several Underwriters that:
3
<PAGE>
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 or Rule 434, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives
4
<PAGE>
may reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and (i)
pursuant to which the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the Company issues
securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Smith Helms Mulliss & Moore, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (the "Principal Subsidiary Bank") is a national banking
5
<PAGE>
association formed under the laws of the United States and
authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect to the Securities with the
[________] Stock Exchange and such counsel received no information
stating that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further subject to 12
U.S.C. ss.1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, in the case
of the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further
6
<PAGE>
subject to 12 U.S.C. ss.1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
(vii) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(viii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder;
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C. ss.1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy);
(x) no consent, approval, authorization or order of any court
or governmental agency or body is required on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under the certificate of
7
<PAGE>
incorporation or by-laws of the Company or (1) the terms of any
material indenture or other agreement or instrument known to such
counsel and to which the Company or the Principal Subsidiary Bank is
a party or bound, or (2) any order or regulation known to such
counsel to be applicable to the Company or the Principal Subsidiary
Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or the Principal Subsidiary Bank; and
(xii) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no reason
to believe that the Registration Statement or any amendment thereof
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, any Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully
8
<PAGE>
examined the Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of
the Company and the boards of directors and executive committees of
its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the
9
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unaudited condensed consolidated interim financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement and Final Prospectus and
reading the unaudited interim financial data, if any, for the period
from the date of the latest balance sheet included or incorporated
by reference in the Registration Statement and Final Prospectus to
the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Final
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days
prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Final Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Prospectus discloses have occurred or may
occur, or PricewaterhouseCoopers LLP shall state any specific
changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information which are included or incorporated by
reference in the Registration Statement and Final Prospectus and
which are specified by the Representatives and agreed to by
PricewaterhouseCoopers LLP, and has found such amounts, percentages
and
10
<PAGE>
financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
11
<PAGE>
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the 1939 Act of
either of the Trustees, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
language on the cover page required by Item 509 of Regulation S-K and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to
12
<PAGE>
be made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
13
<PAGE>
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such exchange, (ii)
a banking moratorium shall have been declared by Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 6
and 7 hereof and this Section 10 shall survive the termination or cancellation
of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and
14
<PAGE>
confirmed to them, at the address specified in Schedule I hereto, with a copy
to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New York 10038,
Attn: James R. Tanenbaum; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Bank of America Corporate Center, 100
North Tryon Street, Charlotte, North Carolina 28255, attention of the Secretary,
with a copy to each of: Bank of America Corporation, Bank of America Corporate
Center, 100 North Tryon Street, Legal Department, NC 1007-20-1, Charlotte, North
Carolina 28255, Attn: Paul J. Polking, General Counsel; and Smith Helms Mulliss
& Moore, L.L.P., 201 North Tryon Street, Charlotte, North Carolina 28202, Attn:
Boyd C. Campbell, Jr.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
15
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By:
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day) funds or wire
transfer to an account previously designated to the Representatives by the
Company or, if agreed to by the Representatives and the Company, by
certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City time,
Office of Stroock & Stroock & Lavan LLP
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from PricewaterhouseCoopers LLP
delivered pursuant to Section 5(e) at the time this Agreement is executed:
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , 19 ,
(the "Delivery Date"),$ principal amount of the Company's (the
"Securities")offered by the Company's Final Prospectus dated , 19 , receipt
of a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest, if any, thereon from ,
19 , to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully registered
form and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal amount
of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
<PAGE>
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
By:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
EXHIBIT 1.2
[Preferred Stock]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ shares (the "Initial Shares") of the Company's
preferred stock (the "Preferred Stock"). The Company also grants to the
Underwriters, severally and not jointly, the option described in Section 2(c) to
purchase up to _____ additional shares (the "Option Shares") of Preferred Stock
to cover over-allotments. The Company may elect to offer fractional interests in
shares of Preferred Stock, in which event the Company will provide for the
issuance by a Depositary of receipts evidencing depositary shares that will
represent such fractional interests ("Depositary Shares"). The shares of
Preferred Stock involved in any such offering are hereinafter referred to as the
"Securities" and, where appropriate herein, reference to the Securities includes
the Depositary Shares. Such Securities are to be sold to each Underwriter,
acting severally and not jointly, in such amounts as are listed in Schedule II
opposite the name of each Underwriter. The Securities are more fully described
in the Final Prospectus, referred to below. If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, each shall
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Securities. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or Rule
434 under the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth
<PAGE>
therein. Such registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears
in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424 or Rule
434 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(ii) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
(b) Each Underwriter represents and agrees that it has not and will not,
directly or indirectly, offer, sell or deliver any of the Securities or
distribute the Final Prospectus or any other offering materials relating to the
Securities in or from any jurisdiction except under circumstances that will, to
the best of its knowledge and belief, result in compliance with any applicable
laws and regulations thereof and that, to the best of its knowledge and belief,
will not impose any obligations on the Company except as set forth herein.
<PAGE>
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective number of Initial
Shares set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Initial Shares pursuant to
delayed delivery arrangements, the respective amounts of Initial Shares to be
purchased by the Underwriters shall be set forth in Schedule II hereto, less the
respective amounts of Contract Securities determined as provided below. Initial
Shares to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Initial Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Initial Shares from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the purchase price set forth
on Schedule I hereto, of the Initial Shares for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will make Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum amount of Initial Shares set forth in
Schedule I hereto and the aggregate amount of Contract Securities may not exceed
the maximum aggregate amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The amount of Initial Shares to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total amount of Initial Shares to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the "Pricing
Agreement") signed by the Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to include the Pricing
Agreement. The purchase price per share to be paid by the several Underwriters
for the Initial Shares shall be an amount equal to the initial public offering
price, less an amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at
<PAGE>
the same price per share determined as provided above for the Initial Shares.
The option hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice by the
Representatives to the Company setting forth the number of Option Shares as to
which the several Underwriters are exercising the option, and the time and date
of payment and delivery thereof. Such time and date of Delivery (the "Date of
Delivery") shall be determined by the Representatives but shall not be later
than seven full business days after the exercise of such option and not in any
event prior to the Closing Date (as defined below). If the option is exercised
as to all or any portion of the Option Shares, the Option Shares as to which the
option is exercised shall be purchased by the Underwriters severally and not
jointly, in proportion to, as nearly as practicable, their respective Initial
Shares underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates may be deposited with The
Depository Trust Company ("DTC") or a custodian of DTC and registered in the
name of Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares shall
be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 or Rule 434, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of
<PAGE>
any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is not now so
subject.
<PAGE>
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and (i)
pursuant to which the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the Company issues
securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Smith Helms Mulliss & Moore, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (or the successor to such entity)(the "Principal Subsidiary
Bank") is a national banking association formed under the laws of
the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares)
<PAGE>
are owned, directly or indirectly, by the Company free and clear of
any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect to the Securities with the
[________] Stock Exchange and such counsel received no information
stating that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(vi) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(vii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder;
(viii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C. ss.1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy);
<PAGE>
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under the certificate of incorporation or by-laws of the
Company or (1) the terms of any material indenture or other
agreement or instrument known to such counsel and to which the
Company or the Principal Subsidiary Bank is a party or bound, or (2)
any order or regulation known to such counsel to be applicable to
the Company or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or the Principal
Subsidiary Bank;
(xi) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement; and
(xii) the Securities have been duly authorized and, when paid
for as contemplated herein, will be duly issued, fully paid and
nonassessable.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not passing upon and assumes no
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no reason
to believe that the Registration Statement or any amendment thereof
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
its subsidiaries and public officials.
<PAGE>
(c) The Representatives shall have received from Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, any Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules
and regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the regulations thereunder.
<PAGE>
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of
the Company and the boards of directors and executive committees of
its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Final Prospectus and reading the
unaudited interim financial data, if any, for the period from the
date of the latest balance sheet included or incorporated by
reference in the Registration Statement and Final Prospectus to the
date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Final
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days
prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Final Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for
<PAGE>
changes or decreases which the Registration Statement and Prospectus
discloses have occurred or may occur, or PricewaterhouseCoopers LLP
shall state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information which are included or incorporated by
reference in the Registration Statement and Final Prospectus and
which are specified by the Representatives and agreed to by
PricewaterhouseCoopers LLP, and has found such amounts, percentages
and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the copying of this Agreement and the Pricing Agreement,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including capital duties, stamp duties and stock
<PAGE>
transfer taxes, if any, payable upon issuance of any of the Securities, the sale
of the Securities to the Underwriters and the fees and expenses of the transfer
agent for the Securities, (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the qualification of the Securities under state
securities laws in accordance with the provisions of Section 4(e), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectuses and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, and (viii) the fee of the
National Association of Securities Dealers, Inc. and, if applicable, the
[__________] Stock Exchange.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Conditions to Purchase of Option Shares. In the event the Underwriters
exercise the option granted in Section 2(c) hereof to purchase all or any
portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
any required filing of the Final Prospectus pursuant to Rule 424(b) or
Rule 434 under the Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(ii) the favorable opinion of Paul J. Polking, Esq., General
Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock & Lavan LLP,
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(c);
<PAGE>
(iv) a certificate of the Chairman of the Board and Chief
Executive Officer or Senior Vice President of the Company and of the
principal financial or accounting officer of the Company with
respect to the matters set forth in Section 5(d);
(v) a letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters, substantially the same
in scope and substance as the letter furnished to the Underwriters
pursuant to Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(v) shall be a date
not more than five days prior to the Date of Delivery;
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (b)(v)
of this Section 7 or (ii) any change, or any development involving a
prospective change, in or affecting the earnings, business or
properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement and the Final Prospectus; and
(vii) such other information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such
<PAGE>
loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, or arises out
of or is based upon statements in or omissions from that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the 1939 Act of either of the
Trustees, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
language on the cover page required by Item 509 of Regulation S-K and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall
<PAGE>
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Representatives in the case of
subparagraph (a), representing the indemnified parties under subparagraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take
<PAGE>
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such exchange, (ii)
a banking moratorium shall have been declared by Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 6
and 8 hereof and this Section 11 shall survive the termination or cancellation
of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038, Attn: James R. Tanenbaum; or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, 100 North Tryon Street, Legal Department, NC
1007-20-1, Charlotte, North Carolina 28255, Attn: Paul J. Polking, General
Counsel; and Smith Helms Mulliss & Moore, L.L.P., 201 North Tryon Street,
Charlotte, North Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
<PAGE>
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, ___
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or official bank check or
checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: ____________________
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ----------------
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , 19 ,
(the "Delivery Date"), shares of the Company's Preferred Stock (the
"Securities") offered by the Company's Final Prospectus dated , 19 , receipt of
a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest, if any, thereon from , 19 , to
the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully registered
form and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate amount of
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such amount of the
Securities as is to be sold to them pursuant to the Underwriting Agreement
referred to in the Final Prospectus mentioned above. Promptly after completion
of such sale to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to cause
the Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
-1-
<PAGE>
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
-2-
<PAGE>
SCHEDULE IV
_________ Shares
BANK OF AMERICA CORPORATION
(a Delaware corporation)
Preferred Stock
PRICING AGREEMENT
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated _____________
__, _ (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares of Preferred Stock
(the "Initial Shares"), of Bank of America Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $__.__, being an amount equal to the initial
public offering price set forth above less $_.__ per share.
-1-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
-2-
EXHIBIT 1.3
[Common Stock]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Underwriter. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter, as of the date hereof and as of the date of
the Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Shares. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the
Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or Rule
434 under the Act a supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth therein.
Such registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
<PAGE>
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424 or Rule
434 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective number of Initial
Shares set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Initial Shares pursuant to
delayed delivery arrangements, the respective amounts of Initial Shares to be
purchased by the Underwriters shall be set forth in Schedule II hereto, less the
respective amounts of Contract Securities determined as provided below. Shares
to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Shares to be
<PAGE>
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Initial Shares from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the purchase price set forth
on Schedule I hereto, of the Initial Shares for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will make Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum amount of Initial Shares set forth in
Schedule I hereto and the aggregate amount of Contract Securities may not exceed
the maximum aggregate amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The amount of Initial Shares to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total amount of Initial Shares to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the "Pricing
Agreement") signed by the Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to include the Pricing
Agreement. The purchase price per share to be paid by the several Underwriters
for the Initial Shares shall be an amount equal to the initial public offering
price, less an amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option hereby granted
will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters severally and not jointly, in
proportion to, as
<PAGE>
nearly as practicable, their respective Initial Shares underwriting obligations
as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial Shares
shall be made on the date and at the time specified in the Pricing Agreement,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Initial Shares being herein called the "Closing
Date"). Delivery of the Initial Shares shall be made to the Representatives for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Initial Shares shall be in the form set forth in Schedule I
hereto, and such certificates may be deposited with The Depository Trust Company
("DTC") or a custodian for DTC and registered in the name of Cede & Co., as
nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares shall
be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 or Rule 434, (ii) when any amendment to the
Registration Statement relating to the Shares shall have become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
<PAGE>
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the Shares for
sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Shares and will arrange for the
determination of the legality of the Shares for purchase by institutional
investors; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and (i)
pursuant to which the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the Company issues
securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the
<PAGE>
representations and warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the filing of
any document incorporated by reference therein) and as of the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Smith Helms Mulliss & Moore, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (or the successor to such entity)(the "Principal Subsidiary
Bank") is a national banking association formed under the laws of
the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Shares conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect
<PAGE>
to the Securities with the [________] Stock Exchange and such
counsel received no information stating that the Initial Shares will
not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vi) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(vii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder;
(viii) this Agreement, the Pricing Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company and each constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be limited
by federal and state securities laws, and further subject to 12
U.S.C. ss.1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy);
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under the certificate of
<PAGE>
incorporation or by-laws of the Company or (1) the terms of any
material indenture or other agreement or instrument known to such
counsel and to which the Company or the Principal Subsidiary Bank is
a party or bound, or (2) any order or regulation known to such
counsel to be applicable to the Company or the Principal Subsidiary
Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement; and
(xii) the Initial Shares, any Option Shares as to which the
option granted in Section 2 has been exercised and the Date of
Delivery determined by the Representatives to be the same as the
Closing Date, have been duly authorized and, when paid for as
contemplated herein, will be duly issued, fully paid and
nonassessable.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no reason
to believe that the Registration Statement or any amendment thereof
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Initial
Shares, the Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
<PAGE>
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of
the Company and the boards of directors and executive committees of
its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
<PAGE>
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Final Prospectus and reading the
unaudited interim financial data, if any, for the period from the
date of the latest balance sheet included or incorporated by
reference in the Registration Statement and Final Prospectus to the
date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Final
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days
prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Final Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Final Prospectus discloses have occurred
or may occur, or PricewaterhouseCoopers LLP shall state any specific
changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information which are included or incorporated by
reference in the Registration Statement and Final Prospectus and
which are specified by the Representatives and agreed to by
<PAGE>
PricewaterhouseCoopers LLP, and has found such amounts, percentages
and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Shares as contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the copying of this Agreement and the Pricing Agreement,
(iii) the preparation, issuance and delivery of the certificates for the Shares
to the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Shares, the sale of the
Shares to the Underwriters and the fees and expenses of the transfer agent for
the Shares, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Shares under state securities laws in
accordance with the provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies
<PAGE>
of the Blue Sky Survey, and (viii) the fee of the National Association of
Securities Dealers, Inc. and, if applicable, the ____________ Stock Exchange.
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 5
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares.
7. Conditions to Purchase of Option Shares. In the event the Underwriters
exercise the option granted in Section 2(c) hereof to purchase all or any
portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
any required filing of the Final Prospectus pursuant to Rule 424(b) or
Rule 434 under the Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(ii) the favorable opinion of Paul J. Polking, Esq., General
Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock & Lavan LLP,
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(c);
(iv) a certificate, of the Chairman of the Board and Chief
Executive Officer or Senior Vice President of the Company and of the
principal financial or accounting officer of the Company with
respect to the matters set forth in Section 5(d);
(v) a letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters, substantially the same
in scope and substance as the letter furnished to the Underwriters
pursuant to Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(v) shall be a date
not more than five days prior to the Date of Delivery;
<PAGE>
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (b)(v)
of this Section 7 or (ii) any change, or any development involving a
prospective change, in or affecting the earnings, business or
properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the Shares as contemplated by the Registration Statement
and the Final Prospectus; and
(vii) such other information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
or arises out of or is based upon statements in or omissions from that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the 1939 Act of either of the
Trustees, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such
<PAGE>
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Shares which are the subject thereof if such person did
not receive a copy of the Final Prospectus (or the Final Prospectus as amended
or supplemented) excluding documents incorporated therein by reference at or
prior to the confirmation of the sale of such Shares to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
language on the cover page required by Item 509 of Regulation S-K and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing
<PAGE>
the indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing
<PAGE>
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Shares, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange, (ii) a
banking moratorium shall have been declared either by Federal authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Shares. The provisions of Section 6 and
8 hereof and this Section 11 shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038, Attn: James R. Tanenbaum; or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, 100 North Tryon Street, Legal Department, NC
1007-20-1, Charlotte, North Carolina 28255, Attn: Paul J. Polking, General
Counsel; and Smith Helms Mulliss & Moore, L.L.P., 201 North Tryon Street,
Charlotte, North Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, ____
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or official bank check or
checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter
from PricewaterhouseCoopers LLP delivered
pursuant to Section 5(e) at the
time this Agreement is executed: _____________________________
-1-
<PAGE>
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
- ------------ ----------------
-2-
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , ,
(the "Delivery Date"), shares of the Company's Common Stock (the "Shares")
offered by the Company's Final Prospectus dated , , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus accrued interest, if any, thereon from , , to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Shares to be purchased by the undersigned shall be made on
or before 11:00 A.M. on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at such other place
as shall be agreed between the Company and the undersigned upon delivery to the
undersigned of the Shares in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Shares will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate amount of Shares to be purchased
by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Shares on the Delivery Date, and the obligation of the Company to sell and
deliver Shares on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Shares to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such amount of the
Shares as is to be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after completion of such
sale to the Underwriters, the Company will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Shares, and the obligation of the Company to cause the Shares to
be sold and delivered, shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Shares pursuant to other contracts
similar to this contract.
-3-
<PAGE>
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
-4-
<PAGE>
SCHEDULE IV
_________ Shares
BANK OF AMERICA CORPORATION
(a Delaware corporation)
Common Stock
PRICING AGREEMENT
-----------------
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated _____________
__, ___ (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of Bank of America Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane LLP,
New York, New York 10038.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $__.__, being an amount equal to the initial
public offering price set forth above less $_.__ per share.
-1-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
-2-
<PAGE>
SCHEDULE A
-3-
EXHIBIT 1.4
[Warrants][Units]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ [warrants][units] (the "Initial
[Warrants][Units]"). Such Initial [Warrants][Units] are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Underwriter. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional [warrants][units] (the "Option
[Warrants][Units]"; together with the Initial [Warrants][Units], the
"[Warrants][Units]") to cover over-allotments. The [Warrants][Units] are more
fully described in the Final Prospectus, referred to below. If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as used herein,
each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter, as of the date hereof and as of the date of
the Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the [Warrants][Units]. Such registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule 415(a)(1)
under the Act and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule 424 or
Rule 434 under the Act a supplement to the form of prospectus included in
such registration statement relating to
1
<PAGE>
the [Warrants][Units] and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus"; and such supplemented form
of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 hereinafter is called the "Preliminary Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, and the Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
2
<PAGE>
[(c) The underlying securities, as set forth in the applicable Final
Prospectus, have been duly authorized and reserved for issuance upon
exercise of the [Warrants][Units].]
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective number of Initial
[Warrants][Units] set forth opposite such Underwriter's name in Schedule II
hereto, except that, if Schedule I hereto provides for the sale of Initial
[Warrants][Units] pursuant to delayed delivery arrangements, the respective
amounts of Initial [Warrants][Units] to be purchased by the Underwriters shall
be set forth in Schedule II hereto, less the respective amounts of Contract
Securities determined as provided below. [Warrants][Units] to be purchased by
the Underwriters are herein sometimes called the "Underwriters' Securities" and
[Warrants][Units] to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Initial [Warrants][Units] from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the purchase price set
forth on Schedule I hereto, of the Initial [Warrants][Units] for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum amount of
Initial [Warrants][Units] set forth in Schedule I hereto and the aggregate
amount of Contract Securities may not exceed the maximum aggregate amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The amount
of Initial [Warrants][Units] to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total amount of Contract Securities as the amount of Initial
[Warrants][Units] set forth opposite the name of such Underwriter bears to the
aggregate amount set forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total amount of
Initial [Warrants][Units] to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase price of the
Initial [Warrants][Units] shall be set forth in a separate written instrument
(the "Pricing Agreement") signed by the Representatives and the Company, the
form of which is attached hereto as Schedule IV. From and after the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to include
the Pricing Agreement. The purchase price per
3
<PAGE>
[warrant][unit] to be paid by the several Underwriters for the Initial
[Warrants][Units] shall be an amount equal to the initial public offering price,
less an amount per [warrant][unit] to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option [Warrants][Units] at the same price
per share determined as provided above for the Initial [Warrants][Units]. The
option hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice by the
Representatives to the Company setting forth the number of Option
[Warrants][Units] as to which the several Underwriters are exercising the
option, and the time and date of payment and delivery thereof. Such time and
date of Delivery (the "Date of Delivery") shall be determined by the
Representatives but shall not be later than seven full business days after the
exercise of such option and not in any event prior to the Closing Date (as
defined below). If the option is exercised as to all or any portion of the
Option [Warrants][Units], the Option [Warrants][Units] as to which the option is
exercised shall be purchased by the Underwriters severally and not jointly, in
proportion to, as nearly as practicable, their respective Initial
[Warrants][Units] underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial
[Warrants][Units] shall be made on the date and at the time specified in the
Pricing Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial [Warrants][Units] being herein
called the "Closing Date"). Delivery of the Initial [Warrants][Units] shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof in the manner set forth in
Schedule I hereto. Unless otherwise agreed, certificates for the Initial
[Warrants][Units] shall be in the form set forth in Schedule I hereto, and such
certificates may be deposited with The Depository Trust Company ("DTC") or a
custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option [Warrants][Units]
are purchased by the Underwriters, delivery and payment for the Option
[Warrants][Units] shall be made at the office specified for delivery of the
Initial [Warrants][Units] in the Pricing Agreement, or at such other place as
the Company and the Representatives shall determine, on the Date of Delivery as
specified in the notice from the Representatives to the Company. Delivery of the
Option [Warrants][Units] shall be made to the Representatives against payment by
the Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company in the manner set forth in Schedule I hereto.
Unless otherwise agreed, certificates for the Option [Warrants][Units] shall be
in the form set forth in Schedule I hereto, and such certificates shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Date of
Delivery.
4. Agreements. The Company agrees with the several Underwriters that:
4
<PAGE>
(a) Prior to the termination of the offering of the
[Warrants][Units], the Company will not file any amendment to the
Registration Statement or supplement (including the Final Prospectus) to
the Basic Prospectus unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the [Warrants][Units]
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or supplement
to the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
[Warrants][Units] for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
[Warrants][Units] is required to be delivered under the Act, except with
respect to any such delivery requirement imposed upon an affiliate of the
Company in connection with any secondary market sales, any event occurs as
a result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be
5
<PAGE>
required by the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the
[Warrants][Units] for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the
[Warrants][Units] and will arrange for the determination of the legality
of the [Warrants][Units] for purchase by institutional investors;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and
pursuant to which the Company issues securities for its dividend
reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Smith Helms Mulliss & Moore, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the
6
<PAGE>
Final Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Bank of
America, N. A. (or the successor to such entity)(the "Principal
Subsidiary Bank") is a national banking association formed under the
laws of the United States and authorized thereunder to transact
business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the [Warrants][Units] conform in all material respects to
the description thereof contained in the Final Prospectus;
(v) if the [Warrants][Units] are to be listed on the [______]
Stock Exchange, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect to
the [Warrants][Units] with the [________] Stock Exchange and such
counsel received no information stating that the [Warrants][Units]
will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vi) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(vii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other
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<PAGE>
than the financial statements and other financial and statistical
information contained therein or incorporated by reference therein,
as to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder;
(viii) this Agreement, the [Warrant][Unit] Agreement, the
Pricing Agreement and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C. ss. 1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy);
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the [Warrants][Units] by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the [Warrants][Units], nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a breach
of, or constitute a default under the certificate of incorporation
or by-laws of the Company or (1) the terms of any material indenture
or other agreement or instrument known to such counsel and to which
the Company or the Principal Subsidiary Bank is a party or bound, or
(2) any order or regulation known to such counsel to be applicable
to the Company or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or the Principal
Subsidiary Bank;
(xi) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement; and
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(xii) the issuance and sale of the [Warrants][Units] have been
duly authorized by the Company, and the [Warrants][Units], when
issued and paid for in accordance with this Agreement and the
[Warrant][Unit] Agreement, will (A) be duly and validly issued, (B)
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefit of the [Warrant][Unit] Agreement, and (C) be
exercisable for such underlying securities, currencies or
commodities or, in the case of underlying securities or commodities,
the cash value thereof, as set forth in the applicable Final
Prospectus in accordance with the terms of the [Warrants][Units][;
the underlying securities, as set forth in the applicable Final
Prospectus, have been duly authorized and reserved for issuance upon
exercise of the [Warrants][Units]].
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not passing upon and assumes no
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no reason
to believe that the Registration Statement or any amendment thereof
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
its subsidiaries and public officials.
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<PAGE>
(c) The Representatives shall have received from Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Initial
[Warrants][Units], the [Warrant][Unit] Agreement, any Delayed Delivery
Contracts, the Registration Statement, the Final Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and
10
<PAGE>
the regulations thereunder with respect to registration statements
on Form S-3 and the Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of:
(a) Reading the minutes of the meetings of the
shareholders, the board of directors, executive committee and audit
committee of the Company and the boards of directors and executive
committees of its subsidiaries as set forth in the minute books
through a specified date not more than five business days prior to
the date of delivery of such letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Final Prospectus and reading the
unaudited interim financial data, if any, for the period from the
date of the latest balance sheet included or incorporated by
reference in the Registration Statement and Final Prospectus to the
date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
regarding the specific items for which representations are requested
below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration Statement
and Final Prospectus, for them to be in conformity with generally
accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five business
days prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance sheet
included or
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<PAGE>
incorporated by reference in the Registration Statement and the
Final Prospectus or (ii) for the period from the date of the latest
available financial data to a specified date not more than five
business days prior to the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Final Prospectus discloses have occurred
or may occur, or PricewaterhouseCoopers LLP shall state any specific
changes or decreases.
(iv) The letter shall also state that
PricewaterhouseCoopers LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Final
Prospectus and which are specified by the Representatives and agreed
to by PricewaterhouseCoopers LLP, and has found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the [Warrants][Units] as contemplated by the Registration Statement and
the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
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<PAGE>
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the copying of this Agreement and the Pricing Agreement,
(iii) the preparation, issuance and delivery of the certificates for the
[Warrants][Units] to the Underwriters, including capital duties, stamp duties
and stock transfer taxes, if any, payable upon issuance of any of the
[Warrants][Units], the sale of the [Warrants][Units] to the Underwriters and the
fees and expenses of the transfer agent for the [Warrants][Units], (iv) the fees
and disbursements of the Company's counsel and accountants, (v) the
qualification of the [Warrants][Units] under state securities laws in accordance
with the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary prospectuses,
and of the Prospectuses and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey, and
(viii) the fee of the National Association of Securities Dealers, Inc. and, if
applicable, the New York Stock Exchange.
If the sale of the [Warrants][Units] provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the [Warrants][Units].
7. Conditions to Purchase of Option [Warrants][Units]. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase all
or any portion of the Option [Warrants][Units] and the Date of Delivery
determined by the Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to purchase and pay
for the Option [Warrants][Units] that they shall have respectively agreed to
purchase hereunder are subject to the accuracy of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
any required filing of the Final Prospectus pursuant to Rule 424(b) or
Rule 434 under the Act shall have been made within the proper time period.
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<PAGE>
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
[Warrants][Units]:
(i) the favorable opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(ii) the favorable opinion of Paul J. Polking, Esq., General
Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock & Lavan LLP,
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(c);
(iv) a certificate, of the Chairman of the Board and Chief
Executive Officer or Senior Vice President of the Company and of the
principal financial or accounting officer of the Company with
respect to the matters set forth in Section 5(d);
(v) a letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters, substantially the same
in scope and substance as the letter furnished to the Underwriters
pursuant to Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(v) shall be a date
not more than five days prior to the Date of Delivery;
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (b)(v)
of this Section 7 or (ii) any change, or any development involving a
prospective change, in or affecting the earnings, business or
properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the [Warrants][Units] as contemplated by the
Registration Statement and the Final Prospectus; and
(vii) such other information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
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<PAGE>
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
or arises out of or is based upon statements in or omissions from that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the 1939 Act of either of the
Trustees, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the [Warrants][Units] which are
the subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such [Warrants][Units] to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
language on the cover page required by Item
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<PAGE>
509 of Regulation S-K and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such
16
<PAGE>
discount and the purchase price of the Securities specified in Schedule I hereto
and the Company is responsible for the balance; provided, however, that (y) in
no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the [Warrants][Units] agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of [Warrants][Units]
set forth opposite their names in Schedule II hereto bear to the aggregate
amount of [Warrants][Units] set forth opposite the names of all the remaining
Underwriters) the [Warrants][Units] which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of [Warrants][Units] which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of [Warrants][Units] set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the [Warrants][Units], and if such nondefaulting
Underwriters do not purchase all the [Warrants][Units], this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In
the event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the [Warrants][Units], if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared by Federal
authorities or (iii) there shall have occurred any outbreak or material
escalation of
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<PAGE>
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the [Warrants][Units].
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the [Warrants][Units]. The provisions of
Section 6 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038-4982, Attn: James R. Tanenbaum; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporation, Bank of America Corporate Center, Charlotte, North Carolina 28255,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, Legal Department, NC1-007-20-01, Charlotte,
North Carolina 28255, Attn: Paul J. Polking, General Counsel; and Smith Helms
Mulliss & Moore, L.L.P., 201 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
18
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
19
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, ___
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or official bank check or
checks.
Other provisions:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum amount of each contract:
Maximum aggregate amount of all contracts:
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant to
Section 5(e) at the time this Agreement is executed:
III-1-
<PAGE>
SCHEDULE II
Principal Amount of
Initial [Warrants]
Underwriters [Units] to be Purchased
- ------------ -----------------------
III-1-
<PAGE>
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , 19 ,
(the "Delivery Date"), [warrants][units] (the "[Warrants][Units]") offered
by the Company's Final Prospectus dated , , receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the principal amount thereof,
plus accrued interest, if any, thereon from , , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the [Warrants][Units] to be purchased by the undersigned shall
be made on or before 11:00 A.M. on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the [Warrants][Units] in definitive fully
registered form and in such authorized denominations and registered in such
names as the undersigned may request by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date. If no request is received, the [Warrants][Units] will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate amount of [Warrants][Units] to be purchased by the undersigned on
the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
[Warrants][Units] on the Delivery Date, and the obligation of the Company to
sell and deliver [Warrants][Units] on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of [Warrants][Units] to be made by the
undersigned, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such amount of the [Warrants][Units] as is to be sold to them
pursuant to the Underwriting Agreement referred to in the Final Prospectus
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the [Warrants][Units],
and the obligation of the Company to cause the [Warrants][Units] to be sold and
delivered, shall not be affected by the failure of any purchaser to
III-1-
<PAGE>
take delivery of and make payment for the [Warrants][Units] pursuant to other
contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
III-2-
<PAGE>
SCHEDULE IV
_________ [Warrants][Units]
BANK OF AMERICA CORPORATION
(a Delaware corporation)
[Warrants][Units]
PRICING AGREEMENT
-----------------
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated _____________
__, ___ (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above [warrants][units] issued
by Bank of America Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per [warrant][unit]for the
Initial [Warrants][Units], determined as provided in said Section 2, shall be
$__.__.
2. The purchase price per [warrant][unit] for the Initial
[Warrants][Units] to be paid by the several Underwriters shall be $__.__, being
an amount equal to the initial public offering price set forth above less $_.__
per share.
IV-1
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
IV-2
<PAGE>
SCHEDULE A
IV-1
EXHIBIT 1.5
BANK OF AMERICA CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
[Date]
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 1(f)
of this Agreement.
Dear Sirs:
Bank of America Corporation, a Delaware corporation and the successor by
merger to NationsBank Corporation (the "Corporation"), has authorized and
proposes to issue and sell from time to time in the manner contemplated by this
Agreement its Senior Medium-Term Notes, Series __ (the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated Notes," and
together with the Senior Notes, the "Notes"). The Senior Notes are to be issued
pursuant to an Indenture dated as of January 1, 1995 between NationsBank
Corporation and U.S. Bank Trust National Association (the "Senior Trustee"), as
successor trustee to BankAmerica National Trust Company, as supplemented by a
First Supplemental Indenture dated as of September 18, 1998 among NationsBank
Corporation, NationsBank (DE) Corporation and the Senior Trustee (collectively,
the "Senior Indenture"). The Subordinated Notes are to be issued pursuant to an
Indenture dated as of January 1, 1995 between NationsBank Corporation and The
Bank of New York (the "Subordinated Trustee"), as trustee, as supplemented by a
First Supplemental Indenture dated as of August 28, 1998 among NationsBank
Corporation, NationsBank (DE) Corporation and the Subordinated Trustee
(collectively, the "Subordinated Indenture"). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the "Trustees," and
the Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures."
The Notes are unsecured debt securities which have been registered under
the Securities Act of 1933, as amended (the "1933 Act"), on Form S-3 with the
Securities and Exchange Commission (the "SEC") $___________ under Registration
No. 333-_______. The registration statement has been declared effective by the
SEC, and the Trustees have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Such registration statement (and any further
registration statement which may be filed by the Corporation for the purpose of
registering additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the prospectus relating
to the offer and sale of the Corporation's debt securities constituting a part
thereof, as supplemented by a prospectus supplement dated on or about the date
hereof relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to collectively herein as the
"Registration Statement" and the "Prospectus,"
<PAGE>
respectively, except that if any revised prospectus shall be provided to the
Agents by the Corporation for use in connection with the offering of the Notes
which is not required to be filed by the Corporation pursuant to Rule 424(b) or
Rule 434 of the rules and regulations of the SEC under the 1933 Act (the "1933
Act Regulations"), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agent for such use.
The Corporation confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") with respect to the issue and sale from
time to time by the Corporation of the Notes as follows:
SECTION 1. Appointment of Agents.
(a) Appointment. Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of you as Agent in connection with the offer
and sale of the Notes. Notwithstanding the foregoing or any other provision
herein to the contrary, the Corporation reserves the right to sell Notes, at any
time, on its own behalf to any unsolicited purchaser, whether directly to such
purchaser or through an agent for such purchaser. Upon the sale of any Notes to
an unsolicited purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(b) Solicitations as Agent. Subject to the terms and conditions set forth
herein, each Agent agrees, as agent of the Company, to use its reasonable best
efforts when requested by the Company to solicit offers to purchase the Notes
upon the terms and conditions set forth in the Prospectus and the administrative
procedures with respect to the sale of Notes as may be agreed upon from time to
time between the Agents and the Corporation (the "Procedures"). Initial
Procedures dated __________, _____ shall remain in effect until changed in
writing signed by the Agents and the Corporation. The Agents and the Corporation
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures. Notwithstanding any provision herein to
the contrary, the Corporation reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agent,
commencing at any time for any period of time or permanently. The Corporation
will timely deliver notice to the Agents of its decision to suspend
solicitations. Upon receipt of instructions from the Corporation, the Agents
will forthwith suspend solicitation of purchases of the Notes until such time as
the Corporation has advised the Agents that such solicitation may be resumed.
Each Agent will communicate to the Corporation, orally, each offer to
purchase Notes solicited by such Agent on an agency basis, other than those
offers rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes by persons
solicited by the Agent, as a whole or in part, and any such rejection shall not
be deemed a breach of the Agent's agreement contained herein. The Corporation
may accept or reject any proposed purchase of the Notes, in whole or in part,
and any such rejection shall not be deemed a breach of the Corporation's
agreement herein.
All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Corporation and such Agent.
The purchase price, interest rate, maturity date and other terms of the Notes
(as applicable) specified in Exhibit B hereto shall be agreed upon by the
Corporation and such Agent and set forth in a pricing supplement to the
Prospectus (a "Pricing Supplement") to be prepared following each acceptance by
the Corporation
-2-
<PAGE>
of an offer for the purchase of Notes.
Such Agent shall make reasonable efforts to assist the Corporation in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Corporation. The Agent shall not
have any liability to the Corporation in the event any such agency purchase is
not consummated for any reason other than the gross negligence of the Agent. If
the Corporation shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Corporation shall (i) hold the Agent for such
purchase harmless against any loss, claim or damage arising from or as a result
of such default by the Corporation and (ii) notwithstanding such default, pay to
such Agent any commission to which it would be entitled in connection with such
sale.
(c) Commissions. For those offers to purchase Notes accepted by the
Corporation, the Agent shall be paid a commission. Unless otherwise agreed
between the Corporation and the Agent and, if required by law or otherwise,
disclosed in a Pricing Supplement, such commission shall be an amount equal to
the applicable percentage of the principal amount of each Note sold by the
Corporation as a result of a solicitation made by such Agent as set forth in
Exhibit C hereto.
(d) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Corporation as principal, but an Agent and the
Corporation may expressly agree from time to time that such Agent shall purchase
Notes as principal. In the event that an Agent and the Corporation shall
expressly so agree, Notes shall be purchased by such Agent as principal. Unless
otherwise agreed between the Corporation and the Agent and, if required by law
or otherwise, disclosed in a Pricing Supplement, each Note sold to an Agent as
principal shall be purchased by such Agent at a price equal to 100% of the
principal amount thereof less a discount equivalent to the applicable
commissions set forth in Exhibit C hereto and may be resold by such Agent at
prevailing market prices at the time or times of resale as determined by such
Agent. Such purchases as principal shall otherwise be made in accordance with
terms agreed upon by the Agent and the Corporation (which shall be agreed upon
orally, with written confirmation prepared by the Agent and delivered to the
Corporation within two business days of such oral agreement). In the absence of
a separate written agreement, the Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations,
warranties and covenants of the Corporation herein contained and shall be
subject to the terms and conditions set forth herein, including Section 10(b)
hereof.
(e) Sub-Agents. An Agent may engage the services of any other broker or
dealer in connection with the resale of any Notes purchased as principal but no
Agent may appoint sub-agents. In connection with sales by an Agent of Notes
purchased by such Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount received in connection with such purchases
from the Corporation to such brokers and dealers.
(f) Appointment of Additional Agents. Notwithstanding any provision herein
to the contrary, the Corporation reserves the right to appoint additional agents
for the offer and sale of Notes, which agency may be on an on-going basis or on
a one-time basis. Any such additional agent shall become a party to this
Agreement and shall thereafter be subject to the provisions hereof and entitled
to the benefits hereunder upon the execution of a counterpart hereof or other
form of acknowledgment of its appointment hereunder, including the form of
letter attached hereto
-3-
<PAGE>
as Exhibit D, and delivery to the Corporation of addresses for notice hereunder
and under the Procedures. After the time an Agent is appointed, the Corporation
shall deliver to the Agent, at such Agent's request, copies of the documents
delivered to other Agents under Sections 4(a), 4(b) and 4(c) and, if such
appointment is on an on-going basis, Sections 6(b), 6(c) and 6(d) hereof. If
such appointment is on an on-going basis, the Corporation will notify the other
active Agents of such appointment.
(g) Reliance. The Corporation and the Agents agree that any Notes the
placement of which an Agent arranges shall be placed by such Agent in reliance
on the representations, warranties, covenants and agreements of the Corporation
contained herein and on the terms and conditions and in the manner provided
herein or provided in the Procedures.
(h) Sale of Notes. The Corporation shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Corporation from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold or otherwise monitoring the
availability of Notes for sale under the Registration Statement.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Corporation of an offer for the
purchase of Notes (whether through an Agent as agent or to an Agent as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Corporation meets the requirements for use of Form S-3 under
the 1933 Act and has filed with the SEC the Registration Statement, which
has become effective. The Registration Statement meets the requirements of
Rule 415(a)(1) under the 1933 Act and complies in all other material
respects with said Rule.
(ii) As of the date hereof, when the Prospectus as supplemented with
respect to the Notes is first filed pursuant to Rule 424 under the 1933
Act, when any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement) and as of the applicable Representation Date, (a)
the Registration Statement, as amended or supplemented as of any such
time, the Prospectus, when filed, and the applicable Indenture will comply
in all material respects with the applicable requirements of the 1933 Act,
the 1939 Act and the 1934 Act and the respective rules and regulations
thereunder, (b) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (c) the
Prospectus, as amended or
-4-
<PAGE>
supplemented as of any such time, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the Corporation makes no representations or warranties as to
(x) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1) under
the 1939 Act of either of the Trustees or (y) the information contained in
or omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Corporation by or on behalf
of any Agent specifically for use in connection with the preparation of
the Registration Statement and the Prospectus.
(iii) The Corporation has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba; provided, however,
that in the event that such Section 517.075 shall be repealed, or amended
such that issuers shall no longer be required to disclose in prospectuses
information regarding business activities in Cuba or that a broker, dealer
or agent shall no longer be required to obtain a statement from issuers
regarding such compliance, then this representation and agreement shall be
of no further force and effect.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Corporation and delivered to an Agent or to counsel for such
Agent in connection with an offering of Notes or the sale of Notes to an Agent
as principal shall be deemed a representation and warranty by the Corporation to
such Agent as to the matters covered thereby on the date of such certificate and
at each Representation Date subsequent thereto.
SECTION 3. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will notify the Agents
immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the filing of any supplement to the Prospectus or any document
to be filed pursuant to the 1934 Act which will be incorporated by reference in
the Prospectus, (iii) the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus (other than with respect to a
document filed with the SEC pursuant to the 1934 Act which will be incorporated
by reference in the Registration Statement and the Prospectus), (iv) any request
by the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information relating thereto
(other than such a request with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Corporation will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Corporation will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration
-5-
<PAGE>
of additional Notes or any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates or maturity dates of Notes
or similar changes or an amendment or supplement effected by the filing of a
document with the SEC pursuant to the 1934 Act) and, upon request, will furnish
the Agents with copies of any such registration statement or amendment or
supplement proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any such
registration statement or amendment or supplement in a form as to which the
Agents or their counsel reasonably object.
(c) Copies of the Registration Statement and the Prospectus and 1934 Act
Filings. The Corporation will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Corporation will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes under the Act. Upon
request, the Corporation will furnish to the Agents a paper copy of any Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K
filed by the Corporation with the Commission pursuant to the 1934 Act as soon as
practicable after the filing thereof.
(d) Preparation of Pricing Supplements. The Corporation will prepare, with
respect to any Notes to be sold through or to an Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of business
on the second business day after the date on which such Pricing Supplement is
first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Corporation, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes any Agent may then own
as principal, and the Corporation will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Corporation with
-6-
<PAGE>
respect to each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Corporation
shall furnish such information to the Agents, confirmed in writing, and
thereafter shall cause the Prospectus to be amended or supplemented to include
or incorporate by reference financial information with respect thereto, as well
as such other information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Corporation
for the preceding fiscal year, the Corporation shall furnish such information to
the Agents and thereafter shall cause the Registration Statement and the
Prospectus to be amended to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements, as may be required
by the 1933 Act or the 1934 Act or otherwise.
(h) Earnings Statements. The Corporation will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the first day of the
Corporation's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualification. The Corporation will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Corporation shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. The Corporation will file such statements and
reports as may be required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Corporation will promptly advise the
Agents of the receipt by the Corporation of any notification with respect to the
suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) 1934 Act Filings. The Corporation, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) Suspension of Certain Obligations. The Corporation shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section or the provisions of Sections 6(b)(ii), 6(c)(iii) and 6(d)(iii) during
any period from the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agent pursuant to a request from the
Corporation and (ii) the Agents shall not then hold any Notes as principal
purchased from the Corporation, to the time the Corporation shall determine that
solicitation of purchases of the
-7-
<PAGE>
Notes should be resumed or shall subsequently agree for the Agents to purchase
Notes as principal.
SECTION 4. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase the Notes as
agent of the Corporation, the obligations of any purchasers of the Notes sold
through any Agent as agent and any obligation of an Agent to purchase Notes as
principal or otherwise will be subject to the accuracy of the representations
and warranties on the part of the Corporation herein and to the accuracy of the
statements of the Corporation's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Corporation of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion of Smith Helms
Mulliss & Moore, L.L.P., counsel to the Corporation, to the effect of
paragraphs (i) and (iv) through (x) below, and the opinion of Paul J.
Polking, Executive Vice President and General Counsel to the Corporation,
to the effect of paragraphs (ii) and (iii) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (the "Principal Subsidiary Bank") is a national banking
association formed under the laws of the United States and
authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) This Agreement has been duly authorized, executed and
delivered by the Corporation and constitutes a legal, valid and
binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting
the
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rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and except insofar as the enforceability of the indemnity
and contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject to
12 U.S.C. ss.1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy underlying all such
laws);
(v) Each of the Indentures has been duly authorized, executed
and delivered by the Corporation, has been duly qualified under the
1939 Act, as applicable, and constitutes a legal, valid and binding
instrument of the Corporation enforceable against the Corporation in
accordance with its terms, and the Notes have been duly authorized
and, when the terms of the Notes have been established and when the
Notes have been completed, executed, authenticated and delivered in
accordance with the provisions of the applicable Indenture, the
applicable Board Resolutions and this Agreement against payment of
the consideration therefor, will constitute legal, valid and binding
obligations of the Corporation entitled to the benefits of such
Indenture, subject (with respect to each of the Indentures and the
Notes) as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further subject to 12
U.S.C. ss.1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy underlying all such
laws;
(vi) The forms of Note attached to the Secretary's Certificate
delivered to the Agents conform in all material respects to the
description thereof contained in the Prospectus, as supplemented or
amended;
(vii) The Registration Statement has become effective under
the 1933 Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act and the
1934 Act and the respective rules thereunder;
(viii) Such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
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(ix) Neither the issuance and sale of the Notes, the
consummation of any other of the transactions contemplated by this
Agreement nor the fulfillment of the terms thereof will conflict
with, result in a breach of, or constitute a default under the
Certificate of Incorporation or the Bylaws of the Corporation, each
as amended to date, or (1) the terms of any material indenture or
other agreement or instrument known to such counsel and to which the
Corporation or the Principal Subsidiary Bank is a party or bound, or
any order or regulation known to such counsel to be applicable to
the Corporation or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Corporation or the Principal
Subsidiary Bank; and
(x) No authorization, order, approval or consent of, or filing
with, any court or governmental authority or agency is necessary or
required on behalf of the Corporation in connection with the sale of
the Notes hereunder, except such as have been obtained under the
1933 Act or the 1933 Act Regulations and such as may be required
under foreign or state securities or insurance laws in connection
with the distribution of the Notes.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of North Carolina or the United States, the General Corporate Law of
Delaware, to the extent deemed proper and specified in such opinion, upon
counsel for the Agents or upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Agents; and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Corporation and the Principal
Subsidiary Bank and public officials.
(1) Opinion of Counsel to the Agents. The opinion of Stroock &
Stroock & Lavan LLP, counsel to the Agents, covering the matters referred
to in subparagraph (1) under the subheadings (iv) through (vii),
inclusive, above.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the United States, to the extent deemed proper and
specified in such opinion, upon counsel for the Corporation or upon the
opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Corporation; and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible officers
of the Corporation and the Principal Subsidiary Bank and public officials.
(3) In giving their opinions required by subsections (a)(1) and
(a)(2) of this Section, but without opining in connection therewith, Smith
Helms Mulliss & Moore, L.L.P. and Stroock & Stroock & Lavan LLP shall each
additionally state that although they have not independently verified, are
not passing upon and assume no responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, such counsel has no reason to believe that the Registration
Statement or any amendment thereof at the time it became effective, or
that the Prospectus, as amended or supplemented, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
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therein, in light of the circumstances under which they were made, not
misleading.
(b) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer or a Senior Vice President
and the Chief Financial or Chief Accounting Officer of the Corporation, dated as
of the date hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this Agreement
and that to the best of their knowledge (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Corporation and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus, as supplemented or amended, (ii) the other
representations and warranties of the Corporation contained in Section 2 hereof
are true and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) the
Corporation has performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
date of such certificate, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
letter from PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") dated as of
the date hereof and in form and substance satisfactory to the Agents, to the
effect that:
(i) They are independent public accountants with respect to the
Corporation and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of the
Corporation and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with respect to
registration statements on Form S-3 and the 1934 Act and the 1934 Act
Regulations.
(iii) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders,
the board of directors, executive committee and audit committee of
the Corporation and the boards of directors and executive committees
of its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in FAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Corporation and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from the date of the
latest balance sheet included or incorporated by
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reference in the Registration Statement and Prospectus to the date
of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Corporation
who have responsibility for financial and accounting matters
regarding the specific items for which representations are requested
below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Prospectus, do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the published rules and regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days
prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in stockholders'
equity of the Corporation and the subsidiaries on a consolidated
basis as compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in stockholders'
equity of the Corporation and the subsidiaries on a consolidated
basis, except in all instances for changes or decreases which the
Registration Statement and Prospectus discloses have occurred or may
occur, or PricewaterhouseCoopers shall state any specific changes or
decreases.
(iv) The letter shall also state that PricewaterhouseCoopers has
carried out certain other specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the Agents and agreed
to by PricewaterhouseCoopers, and has found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Corporation and its subsidiaries
identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date with
respect to any purchase of Notes by an Agent as principal, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
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the fulfillment of any of the conditions, contained herein; and all proceedings
taken by the Corporation in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance to such Agent
and to counsel to the Agents.
If any condition specified in this Section 4 shall not have been fulfilled
in all material respects when and as required to be fulfilled, this Agreement
may be terminated by the Agents by notice to the Corporation at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 3(h) hereof, the provisions concerning payment of expenses under
Section 8 hereof, the indemnity and contribution agreements set forth in Section
7 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 9 hereof and the provisions
regarding parties set forth under Section 13 hereof shall remain in effect.
SECTION 5. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Corporation to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has theretofore paid the
Corporation for such Note, the Corporation will promptly return such funds to
the Agent. If such failure occurred for any reason other than default by the
Agent in the performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Corporation's account. Unless
otherwise agreed between the Corporation and the Agent, all Notes will be issued
in book-entry only form and will be represented by one or more fully registered
global securities.
SECTION 6. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a sale of Notes to such Agent as principal, shall be deemed to be an
affirmation that the representations and warranties of the Corporation contained
in this Agreement and in any certificate theretofore delivered to such Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or his agent,
or to such Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) there is filed
with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
that is incorporated by reference into the Prospectus, or (ii) if required by
the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement
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providing solely for interest rates, maturity dates or other terms of Notes or
similar changes or an amendment or supplement which relates exclusively to an
offering of securities other than the Notes) the Corporation shall furnish or
cause to be furnished to the Agents forthwith a certificate of the Chief
Executive Officer or any Senior Vice President, and the Chief Financial Officer
or the Chief Accounting Officer or Treasurer of the Corporation dated the date
of filing with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form satisfactory to the
Agents to the effect that the statements contained in the certificate referred
to in Section 4(b) hereof which was last furnished to the Agents are true and
correct at the time of such filing, amendment or supplement, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 4(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) there is
filed with the SEC any Annual Report on Form 10-K, (ii) if required by the
Agents, there is filed any Quarterly Report on Form 10-Q, or (iii) if required
by the Agents, the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for
interest rates, maturity dates or other terms of the Notes or similar changes or
solely for the inclusion of additional financial information or an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes), the Corporation shall furnish or cause to be furnished forthwith to the
Agents and to counsel to the Agents the written opinions of Smith Helms Mulliss
& Moore, L.L.P., counsel to the Corporation, and Paul J. Polking, General
Counsel to the Corporation, or other counsel satisfactory to the Agents, dated
the date of filing with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form and substance
satisfactory to the Agents, of the same tenor as the opinions referred to in
Section 4(a)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) there is
filed with the SEC any Annual Report on Form 10-K, (ii) if required by the
Agents, there is filed with the SEC any Quarterly Report on Form 10-Q or (iii)
if required by the Agents, the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information required to
be set forth or incorporated by reference into the Prospectus under the terms of
Item 11 of Form S-3 under the 1933 Act, the Corporation shall cause
PricewaterhouseCoopers forthwith to furnish the Agents a letter, dated the date
of effectiveness of such amendment, supplement or document filed with the SEC,
as the case may be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Section 4(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in
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clauses (iii) and (iv) of said Section 4(c) with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Corporation; provided, however, that
if the Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement. If any other
information included therein is of an accounting, financial or statistical
nature, the Agents may request procedures be performed with respect to such
other information. If PricewaterhouseCoopers is willing to perform and report on
the requested procedures, such letter should cover such other information. Any
letter required to be provided by PricewaterhouseCoopers hereunder shall be
provided within 10 business days of the filing of the Annual Report on Form 10-K
or, with respect to any letter required by the Agents pursuant to subparagraph
(ii) or (iii) hereof, the request by the Agents.
SECTION 7. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the 1933 Act or
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Corporation
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Corporation by or on behalf of any Agent specifically for use in connection with
the preparation thereof, or arises out of or is based upon statements in or
omissions from that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification of the Trustee (Form T-1) under
the 1939 Act of either of the Trustees, and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof if the
Agent failed to deliver a copy of the Prospectus as amended or supplemented to
such person in connection with the sale of such Notes excluding documents
incorporated therein by reference at or prior to the written confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission of a material fact contained
in the Prospectus was corrected in the Prospectus as amended or supplemented.
This indemnity agreement will be in addition to any liability which the
Corporation may otherwise have.
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(b) Each Agent severally agrees to indemnify and hold harmless the
Corporation, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Corporation within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Corporation to each Agent, but only with reference
to written information relating to such Agent furnished to the Corporation by or
on behalf of such Agent specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Agent may otherwise have. The Corporation
acknowledges that the statements set forth in the last two paragraphs on the
cover page and the last paragraph under the heading "Plan of Distribution" in
the Prospectus, as supplemented or amended, constitute the only information
furnished in writing by or on behalf of the several Agents for inclusion in the
documents referred to in the foregoing indemnity, and you, as the Agents,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agent in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Corporation on the grounds of
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policy or otherwise, the Corporation and the Agents shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Corporation and one or more of the Agents may be subject in such
proportion so that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent bears to the total sales price from the sale of Notes sold to or
through the Agents to the date of such liability, and the Corporation is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls any Agent within the meaning of the 1933 Act shall have the same
rights to contribution as such Agent, and each person who controls the
Corporation within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Corporation who shall have signed the Registration Statement and
each director of the Corporation shall have the same rights to contribution as
the Corporation, subject in each case to the provisions of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
SECTION 8. Payment of Expenses.
The Corporation will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Corporation's accountants and
counsel, of the Trustees and their counsel, and of any registrar, transfer
agent, paying agent or calculation agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities or insurance
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any
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amendments or supplements thereto, and the delivery by the Agent of the
Prospectus and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproduction and delivery to the Agents of
copies of the Indentures and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of the
Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other identification numbers for
the Notes; and
(n) The fees and expenses of any depository and any nominees thereof in
connection with the Notes.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Corporation submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of any
Agent, or by or on behalf of the Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement
hereunder by an Agent to purchase Notes as principal) may be terminated for any
reason, with respect to one or more, or all, of the Agents, at any time by
either the Corporation or one or more of the Agents upon the giving of 30 days'
written notice of such termination to the other party hereto. Any termination by
the Corporation of this Agreement with respect to one or more, but less than
all, of the Agents shall be effective with respect to such designated Agents
only, and the Agreement will remain in force and effect with respect to any
other Agents who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal. An Agent may
terminate any agreement hereunder by such Agent to purchase Notes as principal,
immediately upon notice to the Corporation at any time prior to the Settlement
Date relating thereto, (i) if there has been, since the date of such agreement
or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Corporation and its
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<PAGE>
subsidiaries considered as one enterprise, or (ii) if there shall have occurred,
since the date of such agreement, any outbreak or material escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the sole judgment of such Agent, impracticable
to market the Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in securities generally on the New
York Stock Exchange shall have been suspended or limited, or (iv) if, since the
date of such agreement, a banking moratorium shall have been declared by either
Federal or New York authorities.
If, after the date of an agreement hereunder to purchase Notes as
principal and prior to the Settlement Date with respect to such agreement, the
rating assigned by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, or Moody's Investors Service, Inc., as the case may be,
to any debt securities of the Corporation shall have been lowered or if either
of such rating agencies shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Corporation, then the Corporation and the Agent mutually
shall determine whether the terms of such agreement to purchase Notes shall need
to be renegotiated and, if so, shall so negotiate in good faith the revised
terms of such agreement to purchase Notes. In the event that the Corporation and
the Agent reasonably fail to agree on any such revised terms, then either the
Corporation or the Agent may terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this Section 10, or
following the Settlement Date in connection with a sale to or through an Agent
appointed on a one-time basis, neither party will have any liability to the
other party hereto, except that (i) the Agents shall be entitled to any
commission earned in accordance with Section 1(c) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as principal with
the intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Corporation but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not occurred, the covenants
set forth in Sections 3 and 6 hereof shall remain in effect until such Notes are
so resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 3(h) hereof, the provisions of Section 8 hereof, the indemnity and
contribution agreements set forth in Section 7 hereof, and the provisions of
Sections 9, 12 and 13 hereof shall remain in effect.
SECTION 11. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram. Notices to the Corporation shall be delivered to
it at the address specified below and notices to any Agent shall be delivered to
it at the address set forth on Exhibit A.
-19-
<PAGE>
If to the Corporation:
Bank of America Corporation
Bank of America Corporate Center
Corp. Treas. Div. NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: John E. Mack,
Senior Vice President
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
Bank of America Corporation
Bank of America Corporate Center
Legal Department, NC1-007-20-01
100 North Tryon Street
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 11.
SECTION 12. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Corporation and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No
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<PAGE>
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
-21-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Corporation a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Corporation in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:
----------------------------------------
Name:
Title:
-22-
<PAGE>
(Signature Page for Agents)Accepted:
[------------------------]
By:
-----------------------
Name:
Title:
-23-
<PAGE>
EXHIBIT A
---------
AGENTS
(Names and Addresses of Agents)
- -------------------
- -------------------
- -------------------
- -------------------
Telecopy:
Telephone:
With a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
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<PAGE>
EXHIBIT B
---------
The following terms, if applicable, shall be agreed to by an Agent and the
Corporation in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Indexed Note:
Applicable Index for Principal and/or Interest:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Valuation Date:
Reference Price:
Principal Repayment Amount:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
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<PAGE>
Other Terms:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
EXHIBIT C
As compensation for the services of an Agent hereunder, the Corporation
shall pay it, on a discount basis, a commission for the sale of each Note by
such Agent which, unless otherwise agreed between the Corporation and Agent,
shall be equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY PRINCIPAL
RANGES AMOUNT
- ------ ------
From 9 months to less than 1 year.......................
From 1 year to less than 18 months......................
From 18 months to less than 2 years.....................
From 2 years to less than 3 years.......................
From 3 years to less than 4 years.......................
From 4 years to less than 5 years.......................
From 5 years to less than 6 years.......................
From 6 years to less than 7 years.......................
From 7 years to less than 10 years......................
From 10 years to less than 15 years.....................
From 15 years to less than 20 years.....................
From 20 years to 30 years...............................
-26-
<PAGE>
The commission for Notes with a maturity more than 30 years or sold to one or
more Agents as principal also is subject to negotiation between the Corporation
and the Agent at the time of sale.
-27-
<PAGE>
EXHIBIT D
---------
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term Senior/Subordinated Notes,
Series _, by Bank of America Corporation
Dear __________:
The Master United States Distribution Agreement dated _______ __, ___ (the
"Agreement"), among Bank of America Corporation ("Bank of America") and the
Agents named therein, provides for the issue and sale by Bank of America of its
Medium Term Notes, Series __.
Subject to and in accordance with the terms of the Agreement and accompanying
Administrative Procedures, Bank of America hereby appoints you as Agent (as such
term is defined in the Agreement) in connection with the purchase of the notes
as described in the accompanying Pricing Supplement No. ___, dated ___________,
____, (the "Notes") but only for this one reverse inquiry transaction. Your
appointment is made subject to the terms and conditions applicable to Agents
under the Agreement and terminates upon payment for the Notes or other
termination of this transaction. Accompanying this letter is a copy of the
Agreement, the provisions of which are incorporated herein by reference. Copies
of the officer's certificate, opinions of counsel, and auditors' letter
described in the Agreement are not enclosed but are available upon your request.
This letter agreement, like the Agreement, is governed by and construed in
accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our agreement, please
sign and return this letter to us on or before settlement date. This action will
confirm your appointment and your acceptance and agreement to act as Agent in
connection with the issue and sale of the above described Notes under the terms
and conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
BANK OF AMERICA CORPORATION [Name of Agent]
By:_____________________ By:_____________________
Name:__________________ Name:___________________
Title:___________________ Title:__________________
-28-
[FORM OF SENIOR REGISTERED NOTE]
IF THE REGISTERED OWNER OF THIS NOTE IS THE DEPOSITORY TRUST COMPANY OR A
NOMINEE THEREOF, THIS NOTE IS A GLOBAL SECURITY AND THE FOLLOWING LEGENDS ARE
APPLICABLE: 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
to 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______
Common Code No. ________________ CUSIP __________
ISIN ___________________________
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
BANK OF AMERICA CORPORATION
______% SENIOR NOTE, DUE ____
BANK OF AMERICA CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (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 _____________________, 19___,(2) and to pay interest on said principal sum,
semi-annually(3) in ____________________________________
(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
(continued...)
<PAGE>
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 of
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 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 __________________. 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
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 such 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 Security
Register of the Corporation relating to the Notes. Any interest not punctually
paid or duly provided for shall be payable as provided in such Indenture.(5)
- ---------------------------
(2)(...continued)
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.
(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
2
<PAGE>
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 or on
behalf of the Trustee or 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
Attest:
________________________________ By:___________________________________
________________ Secretary [Title: ]
[CORPORATE SEAL]
Dated
- -------------------------
(5)(...continued)
amounts.
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee,
Dated: ___________________ [By: THE BANK OF NEW YORK,
as Authenticating Agent]
By: ______________________________
Authorized Signatory
4
<PAGE>
[Reverse Side of Note]
BANK OF AMERICA CORPORATION
______% SENIOR 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 (herein called the "Indenture")
between the Corporation and U.S. Bank Trust National Association, as successor
trustee to BankAmerica National Trust Company (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), as supplemented
by a First Supplemental Indenture dated as of September 18, 1998, 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 _____% Senior Notes, due __________ (herein called the
"Notes"), initially issued in the principal amount of $__________. [The amount
of Notes of this series may be increased by the Corporation in the future]. The
Bank of New York initially has been appointed Security Registrar, Authenticating
and Paying Agent in connection with the Notes.
[Except as otherwise provided 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.]
The Corporation shall pay as additional interest on this Note such
additional amounts ("Additional Amounts") as may be necessary in order that the
net payment by the Corporation of the principal of and interest on this Note to
a holder who is a Non-United States person, after deduction for any present or
future tax, assessment or governmental charge of the United States, or a
political subdivision or authority thereof or therein, imposed by withholding
with respect to the payment, will not be less than the amount provided for in
this Note to be then due and payable; provided, however, that the foregoing
obligation to pay Additional Amounts shall not apply to:
- -----------------
(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.
5
<PAGE>
(i) any tax, assessment or other governmental charge which would not have
been so imposed but for:
(a) the existence of any present or former connection between such
holder (or between a fiduciary, settlor, beneficiary, member or stockholder
of, or a person holding a power over, such holder, if such holder is an
estate, trust, partnership or corporation) and the United States,
including, without limitation, such holder (or such fiduciary, settlor,
beneficiary, member, stockholder or person holding a power) being or having
been a citizen or resident or treated as a resident thereof or being or
having been engaged in a trade or business therein or being or having been
present therein or having or having had a permanent establishment therein;
(b) such holder=s present or former status as a personal holding
company, foreign personal holding company, passive foreign investment
company, private foundation or other tax-exempt entity or controlled
foreign corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax; or
(c) such holder=s status as a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of business;
(ii) any tax, assessment or governmental charge that would not have been
imposed or withheld but for the failure of the holder to comply with
certification, identification or information reporting requirements under United
States income tax laws, without regard to any tax treaty, with respect to the
payment, concerning the nationality, residence, identity or connection with the
United States of the holder or a beneficial owner of this Note, if such
compliance is required by United States income tax laws, without regard to any
tax treaty, as a precondition to relief or exemption from such tax, assessment
or governmental charge;
(iii) any tax, assessment or governmental charge that would not have been
so imposed or withheld but for the presentation by the holder of this Note for
payment on a date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later;
(iv) any estate, inheritance, gift, sales, transfer, excise, wealth or
personal property tax or any similar tax, assessment or governmental charge;
(v) any tax, assessment or governmental charge which is payable otherwise
than by withholding by the Corporation or the Trustee from the payment of the
principal of or interest on this Note;
(vi) any tax, assessment or governmental charge required to be withheld
from such payment of principal of or interest on this Note, if such payment can
be made without such withholding or any liability on the part of the
Corporation;
6
<PAGE>
(vii) any tax, assessment or other governmental charge imposed on interest
received by a person holding, actually or constructively, 10% or more of the
total combined voting power of all classes of stock of the Corporation entitled
to vote; or
(viii) any combination of items (i), (ii), (iii), (iv), (v), (vi) or (vii);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or interest on this Note to a person other than the sole beneficial
owner of such payment or that is a partnership or fiduciary to the extent such
beneficial owner, member of such partnership or beneficiary or settlor with
respect to such fiduciary would not have been entitled to the payment of
Additional Amounts had such beneficial owner, member, beneficiary or settlor
held its interest in this Note directly.
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.
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 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,
Notes are exchangeable for a like aggregate principal amount of Notes of
different authorized denominations, as requested by the holder surrendering the
same.
7
<PAGE>
If any interest payment date or maturity date for a Note falls on a day
that is not a Business Day, the interest payment date or maturity date will be
the following day that is a Business Day and the payment of interest or
principal will be made on such next Business Day as if it were made on the date
such payment was due and no additional interest will accrue on the amount so
payable for the period from and after such interest payment date or maturity
date.
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 and any agent of the Corporation or the Trustee 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 nor any such agent shall be affected by notice to the contrary.
If an Event of Default (defined in the Indenture as (i) the Corporation's
failure to pay principal of (or premium, if any, on) any Notes when due, or to
pay interest on the Notes within 30 days after the same becomes due, (ii) the
Corporation's breach of its other covenants contained in this Note or the
Indenture, which breach is not cured within 90 days after written notice by the
Trustee or the holders of at least 25% in outstanding principal amount of all
Securities issued under the Indenture and affected thereby, and (iii) certain
events involving the bankruptcy, insolvency or liquidation 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.
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 issued 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 issued 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.
8
<PAGE>
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 the 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 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
owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal and interest to beneficial owners of the Notes by participants of
DTC will be the responsibility of 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 in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
----------
9
<PAGE>
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.
----------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------
- ----------------------------------------------
_______________________________________________________________________________
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
_____________________________________________________________________ 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:_____________________
_______________________________________
10
<PAGE>
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.
11
If the registered owner of this Note is The Depository Trust Company or a
nominee thereof, this Note is a Global Security and the following legends are
applicable. 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.(1)
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 FXR _________ $__________
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Fixed Rate) CUSIP ________
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE: |_| This Note is a Renewable Note.
FINAL MATURITY DATE: See Attached Rider
INITIAL REDEMPTION DATE: |_| This Note is an Extendible Note.
INITIAL REDEMPTION PERCENTAGE: See Attached Rider
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
Bank of Amerca Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (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 on the
Stated Maturity Date specified above (except to the extent redeemed or repaid
prior to the Stated Maturity Date), and to pay interest on said principal sum,
semiannually in arrears on ____________ and __________ of each year (each an
"Interest Payment Date"), at the Interest
- --------
1 Applies only if this Note is a Global Security.
<PAGE>
Rate per annum specified above, until payment of such principal sum has been
made or duly provided for, commencing on the first Interest Payment Date next
succeeding the Original Issue Date specified above, unless the Original Issue
Date occurs between a Regular Record Date, as defined below, and the next
succeeding Interest Payment Date, in which case commencing on the Interest
Payment Date following the next succeeding Regular Record Date, and on the
Stated Maturity Date or Final Maturity Date shown above (or any Redemption Date
as defined on the reverse hereof or any Optional Repayment Date with respect to
which any such option has been exercised, each such Stated Maturity Date, Final
Maturity Date, Redemption Date and Optional Repayment Date being herein referred
to as a "Maturity Date" with respect to the principal payable on such date).
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 be in the amount of
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for or, if no interest
has been paid, from the Original Issue Date specified above, to but excluding
the Interest Payment Date or 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 or interest payable with respect to such Maturity Date
or Interest Payment Date will be paid on the next 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 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 Regular Record Date, which shall be the
__________ or the __________, whether or not a Business Day, as the case may be,
next preceding such Interest Payment Date; provided, however, that the first
payment of interest on any Note with an Original Issue Date, as specified above,
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
succeeding Regular Record Date to the person in whose name this Note is
registered at the close of business on such next succeeding Regular Record Date;
and provided, further, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. Any
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture. As used herein, "Business Day" means any day, other than a
Saturday or Sunday or a legal holiday in New York, New York or Charlotte, North
Carolina that is not a day on which banks in New York, New York, Charlotte,
North Carolina or _________________ are authorized or required by law or
regulation to be closed.
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 designated 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 Trustee from the holder hereof not less than one Business Day
2
<PAGE>
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, as Issuing and Paying
Agent at 101 Barclay Street, New York, New York 10286] (the "Corporate Trust
Office").
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: ]
ATTEST:
By:______________________
___________ Secretary
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_____________
U. S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
[By: The Bank of New York,
as Authenticating Agent]
By:__________________________
Authorized Signatory
4
<PAGE>
[Reverse of Note]
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Fixed Rate)
This Medium-Term Note is one of a duly authorized series of Securities of
the Corporation unlimited in aggregate principal amount (herein called the
"Notes") issued and to be issued under an Indenture dated as of January 1, 1995
(herein called the "Indenture"), between the Corporation and U.S. Bank Trust
National Association, as successor trustee to BankAmerica National Trust Company
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by a First Supplemental Indenture dated as of
September 18, 1998, 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 Senior Medium-Term Notes,
Series ___, initially in the principal amount of $_____________. [The Bank of
New York initially has been appointed as Security Registrar and as Issuing and
Paying Agent in connection with the Notes.] The amount of the series of Notes
may be increased at any time. The Notes may bear different dates, mature at
different times, bear interest at different rates and vary in such other ways as
are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the holder on the
Optional Repayment Date(s), if any, indicated on the face hereof. IF NO OPTIONAL
REPAYMENT DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID
AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any
Optional Repayment Date this Note shall be repayable in whole or in part in
increments of $1,000 at the option of the holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof, this Note must be received, with the
form entitled "Option to Elect Repayment" below duly completed, by the
Trustee/Paying Agent at the Corporate Trust Office, or such other address of
which the Corporation shall from time to time notify the holders of the Notes,
not more than 60 nor less than 30 days prior to an Optional Repayment Date.
Exercise of such repayment option by the holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Corporation on any date on
and after the Initial Redemption Date, if any, specified on the face hereof (the
"Redemption Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE
HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR TO
THE STATED MATURITY DATE. 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 in
increments of $1,000 at the option
5
<PAGE>
of the Corporation at the applicable Redemption Price (as defined below)
together with interest thereon payable to the Redemption Date, on notice given
not more than 60 nor less than 30 days prior to the Redemption Date. 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 holder hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Corporation, the
"Redemption Price" shall initially be the Initial Redemption Percentage,
specified on the face hereof, of the principal amount of this Note to be
redeemed and shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face
hereof, of the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
[The provisions of Article Fourteen of the Indenture do not apply to
Securities of this Series.]
If an Event of Default (defined in the Indenture as (i) the Corporation's
failure to pay principal of (or premium, if any, on) the Notes when due, or to
pay interest on the Notes within 30 days after the same becomes due, (ii) the
Corporation's breach of its other covenants contained in this Note or in the
Indenture, which breach is not cured within 90 days after written notice by the
Trustee or by the holders of at least 25% in outstanding principal amount of all
Securities issued under the Indenture and affected thereby, and (iii) certain
events involving the bankruptcy, insolvency or liquidation 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.
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 Notes then
outstanding and all other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all 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.
6
<PAGE>
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.
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 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
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
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, the Trustee or the Issuing and Paying Agent may treat the entity 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 shall be affected by notice to the contrary.
All terms used in this Note which 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
owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest,
7
<PAGE>
notices and voting. Transfer of principal and interest to participants of DTC
will be the responsibility of DTC, and transfer of principal and interest to
beneficial owners of the Notes by participants of DTC will be the responsibility
of 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 in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
8
<PAGE>
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: ________________________ _________________________
9
<PAGE>
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.
10
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf of
the Trustee) must receive at __________________, or at such other place or
places of which the Corporation shall from time to time notify the Holder of
this Note, not more than 60 nor less than 30 days prior to an Optional Repayment
Date, if any, shown on the face of this Note, 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,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $__________ or an integral multiple of $l,000 in excess of
$__________) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, 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.]
11
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is a Renewable Note which initially matures on the Stated Maturity Date shown on
the face hereof. At each Renewal Date, as specified below, the maturity of this
Note will be automatically extended to the corresponding New Maturity Date, as
specified below, unless the registered holder of this Note elects to terminate
the automatic extension of the maturity of this Note or any portion hereof and
delivers a completed Extension Termination Notice to the Trustee (or any duly
appointed paying agent) not less than 15 nor more than 30 days prior to the
applicable Renewal Date. The Extension Termination Notice may specify all or a
portion of the outstanding principal amount of the Note so long as the principal
amount of the Note remaining outstanding after repayment is an integral multiple
of $1,000. Upon timely delivery of such Extension Termination Notice, the term
of the principal amount of this Note subject to such notice will be deemed
automatically to mature on the Stated Maturity Date or the then applicable New
Maturity Date, as the case may be. The remaining principal balance of such Note,
if any, will be deemed to automatically be extended to the corresponding New
Maturity Date but in no circumstances may such maturity be extended beyond the
Final Maturity Date set forth below. An election to terminate the automatic
extension of the maturity hereof shall be irrevocable and binding on each holder
hereof. Notwithstanding any such extension, the interest rate applicable to this
Note will continue to be calculated as set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
---------------- ---------------------
12
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note for one or more whole year periods, as set forth below
(each, an "Extension Period"), up to but not beyond the Final Maturity Date set
forth below, under the terms of this Note as supplemented by this Extendible
Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
----------------- --------------
The Corporation may exercise its option with respect hereto by delivery to
the Trustee (or any duly appointed paying agent) of notice of such exercise at
least 45 but not more than 60 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 days prior to the Stated
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Trustee (or any duly appointed Paying Agent) will mail
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 Corporation to extend the maturity hereof,
(ii) the new Extended Maturity Date, (iii) the interest rate applicable to 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 (or any duly appointed
Paying Agent) of an Extension Notice to the registered holder hereof, the
maturity hereof shall be extended automatically as set forth in such 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 days prior to the
Maturity Date hereof (or, if such date is not a Business Day, on the immediately
succeeding Business Day), the Corporation may, at its option, 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 Trustee (or any
duly appointed paying agent) to mail notice of such higher interest rate, first
class mail, postage
<PAGE>
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 Corporation elects to extend the maturity hereof, the registered
holder hereof will have the option to elect repayment hereof by the Corporation
on the 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 Maturity Date, the Corporation must receive, at least 15
days but not more than 30 days prior to the Maturity Date then in effect with
respect hereto, (i) this Note with the form "Option to Elect Repayment" on the
reverse hereof duly completed or (ii) a telegram, telex, facsimile transmission
or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the registered holder hereof, the
principal amount hereof to 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 (or any duly appointed paying agent) not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee (or any duly appointed 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 an
integral multiple of $1,000.
If the registered owner of this Note is The Depository Trust Company or a
nominee thereof, this Note is a Global Security and the following legends are
applicable: 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.(1)
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 FLR _______ $_________
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE,
SERIES ___
(Floating Rate)
CUSIP _______________
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR ____________
INTEREST RATE (IF DIFFERENT): ___Federal Funds Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate Page:____
SPREAD: CMT Maturity Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE: ___Other:________________
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: |_| This Note is a Renew-
INTEREST RATE RESET PERIOD: able Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: |_|This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
Bank of America Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (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
- --------
(1) Applies only if this Note is a Global Security.
<PAGE>
assigns, the principal sum of ________________ DOLLARS on the Stated Maturity
Date specified above (except to the extent redeemed or repaid prior to the
Stated Maturity Date), and to pay interest thereon at a rate per annum equal to
the Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions on the reverse hereof, depending upon the appropriate Base Rate and
Index Maturity specified above, until the principal hereof is paid or duly made
available for payment. The Corporation will pay interest on the Interest Payment
Dates specified above, commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, unless the Original Issue
Date occurs between a Regular Record Date, as defined below, and the next
Interest Payment Date, in which case commencing on the Interest Payment Date
following the next Regular Record Date, and on the Stated Maturity Date or Final
Maturity Date shown above (or any Redemption Date as defined on the reverse
hereof or any Optional Repayment Date with respect to which any such option has
been exercised, each such Stated Maturity Date, Final Maturity Date, Redemption
Date and Optional Repayment Date being herein referred to as a "Maturity Date"
with respect to the principal repayable on such date). Interest on this Note
will accrue from the Original Issue Date specified above until the principal
amount is paid and will be computed as hereinafter described.
Interest payable on this Note on any Interest Payment Date or the Maturity
Date will include 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), to but excluding such Interest Payment Date or Maturity Date, as the
case may be; provided, however, that if the Interest Reset Period specified
above is daily or weekly, interest payable on any Interest Payment Date or the
Maturity Date will include interest accrued from but excluding the Regular
Record Date through 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 and including the Regular Record Date preceding
such Interest Payment Date, except that interest payable on any such Maturity
Date will include interest accrued to, but excluding, such Maturity Date. If any
Interest Payment Date falls on a day which is not a Business Day, as defined
below, such Interest Payment Date shall be the following day that is a Business
Day, except that if the Base Rate is LIBOR, if such next Business Day falls in
the next calendar month, such Interest Payment Date will be the preceding day
that is a Business Day; and if the Maturity Date falls on a day which is not a
Business Day, principal or interest payable with respect to such Maturity Date
will be paid on the next Business Day with the same force and effect as if made
on such Maturity Date, and no additional interest shall accrue for the period
from and after such Maturity Date. 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 at the close of business on
the date 15 calendar days prior to such Interest Payment Date, whether or not a
Business Day (the "Regular Record Date"); provided, however, that the first
payment of interest on any Note with an Original Issue Date, as specified above,
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 on the Maturity Date will be payable to the person to whom the
principal hereof shall be payable. Any such interest
2
<PAGE>
not punctually paid or duly provided for shall be payable as provided in the
Indenture. As used herein, "Business Day" means any day, other than a Saturday
or Sunday or a legal holiday in New York, New York or Charlotte, North Carolina,
that (i) is not a day on which banking institutions in New York, New York,
Charlotte, North Carolina or ___________ are authorized or required by law or
regulation to be closed and (ii) if the Base Rate is LIBOR, is a day on which
dealings in deposits on U.S. dollars are transacted in the London interbank
market.
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 designated 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 from the 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, as Issuing
and Paying Agent, 101 Barclay Street, New York, New York 10286] (the "Corporate
Trust Office").
Reference is hereby 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 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.
3
<PAGE>
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: ]
ATTEST:
_____________________________
_________ Secretary
4
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: ____________________________
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
[By: THE BANK OF NEW YORK,
as Authenticating Agent]
By:___________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE,
SERIES ___
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of Securities of
the Corporation unlimited in aggregate principal amount (herein called the
"Notes") issued and to be issued under an Indenture dated as of January 1, 1995
(herein called the "Indenture"), between the Corporation and The Bank of New
York, as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a First Supplemental Indenture
dated as of August 28, 1998, 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
Medium-Term Notes, Series ___, initially in the principal amount of
[$____________]. The principal amount of Notes of this series may be increased
at any time. The Notes may bear different dates, mature at different times, bear
interest at different rates and vary in such other ways as are provided in the
Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the holder only if
Optional Repayment Date(s) are indicated on the face hereof. IF NO OPTIONAL
REPAYMENT DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID
AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 at the option of the holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof, this Note must be received, with the
form below entitled "Option to Elect Repayment" duly completed, by the Issuing
and Paying Agent at the Corporate Trust Office, or such other address of which
the Corporation shall from time to time notify the holders of the Notes, not
more than 60 nor less than 30 days prior to an Optional Repayment Date. Exercise
of such repayment option by the holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Corporation on any date on
and after the Initial Redemption Date, if any, specified on the face hereof (the
"Redemption Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE
HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR TO
THE STATED MATURITY DATE. 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 in
increments of $1,000 at the option
6
<PAGE>
of the Corporation at the applicable Redemption Price (as defined below)
together with interest thereon payable to the Redemption Date, on notice given
not more than 60 nor less than 30 days prior to the Redemption Date. 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 Holder hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Corporation, the
"Redemption Price" shall initially be the Initial Redemption Percentage,
specified on the face hereof, of the principal amount of this Note to be
redeemed and shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face
hereof, of the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
Accrued interest hereon shall be calculated by multiplying the face amount
hereof by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day from and
including Original Issue Date, or from, but excluding, the last date to which
interest has been paid, as the case may be, to and including the date for which
accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day shall be computed by dividing the interest rate in
effect on such day by (i) 360 or, (ii) the actual number of days in the year, in
the case of Notes having the Treasury Rate or the CMT Rate as their Base Rate as
specified on the face hereof.
The Base Rate (as defined herein) with respect to this Note may be (i) the
CD Rate, (ii) the Commercial Paper Rate, (iii) LIBOR, (iv) the Federal Funds
Rate, (v) the Prime Rate, (vi) the Treasury Rate, (vii) the CMT Rate, (viii) the
Eleventh District Cost of Funds Rate or (ix) such other rate as will be
described on the face hereof and a rider to this Note.
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 shown on the face hereof (i) plus or minus the Spread, if
any, or (ii) multiplied by the Spread Multiplier, if any, specified on the face
hereof. 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 (as defined below) 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 next preceding Interest
Reset Date, provided that (i) the interest rate in effect from the Original
Issue Date to the first Interest Reset Date shall be the Initial Interest Rate
specified on the face hereof, and (ii) the interest rate in effect for the ten
calendar days immediately prior to the Maturity Date shall be the rate in effect
on the tenth calendar day preceding such Maturity Date. If any Interest Reset
Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next day that is a Business Day, except that if
the Base Rate specified on the face hereof is LIBOR, if such next Business Day
is in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. The term "Final Interest Payment Period"
means the period from the final Interest Reset Date to the Maturity Date.
7
<PAGE>
The Interest Determination Date with respect to any Note that has as its
Base Rate the CD Rate, the Commercial Paper Rate, the Federal Funds rate, the
Prime Rate or the CMT Rate will be the second Business Day preceding the
applicable Interest Reset Date. The Interest Determination Date with respect to
any Note that has LIBOR as its base rate will be the second London Banking Day
(as defined below) preceding the applicable Interest Reset Date. The Interest
Determination Date with respect to any Note that has the Eleventh District Cost
of Funds Rate as its Base Rate will be the last Business Day of the month
immediately preceding the applicable Interest Reset Date in which the Federal
Home Loan Bank of San Francisco (the "FHLB") publishes such Index (as defined
below). The Interest Determination Date with respect to any Note that has the
Treasury Rate as its Base Rate will be the day of the week in which the
applicable Interest Reset Date falls on which Treasury bills of the Index
Maturity specified on the face hereof normally would be auctioned; provided,
however, that if as a result of a legal holiday an auction is held on the Friday
of the week preceding the Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that
if an auction shall fall on any Interest Reset Date then the Interest Reset Date
shall instead be the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest Determination Date shall
be the earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day next preceding the applicable Interest Payment Date or
Maturity Date, as the case may be.
All percentages resulting from any calculation on the Notes will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
Determination of CD Rate. CD Rate means, with respect to an Interest
Determination Date (a "CD Rate Interest Determination Date"), the rate on such
CD Rate Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof, as such rate is
published by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Federal Reserve Board ("H.15(519)"), under the
heading "CDS (Secondary Market)," or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit of the Index Maturity
specified on the face hereof, as published by the Federal Reserve Bank of New
York in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading "Certificates
of Deposit." If such rate is not published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on such Calculation Date, then the
CD Rate on such CD Rate Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major
8
<PAGE>
United States money center banks with a remaining maturity closest to the Index
Maturity specified on the face hereof in denominations of $5,000,000; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the CD Rate for such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
Determination of Commercial Paper Rate. The Commercial Paper Rate means,
with respect to an Interest Determination Date (a "Commercial Paper Rate
Interest Determination Date"), the Money Market Yield (as defined below) of the
rate on such date for commercial paper having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading "Commercial Paper."
In the event such rate is not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Rate Interest Determination
Date, the Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If such rate is not
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, the Commercial Paper Rate for that
Commercial Paper Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper of
the Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA", or the equivalent, by a nationally recognized
securities rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate with respect to such Commercial Paper Rate Interest
Determination Date will be the Commercial Paper Rate then in effect on such
Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be the yield (expressed as a percentage rounded
to the nearest one ten-thousandth of a percent, with five one
hundred-thousandths of a percent rounded upward) calculated in accordance with
the following formula:
Money Market Yield = D x 360
--------------------------
360 - (D x M) x 100
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal, and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of LIBOR. LIBOR means the rate determined by the Calculation
Agent in accordance with the following provisions:
9
<PAGE>
(i) With respect to an Interest Determination Date (a "LIBOR
Interest Determination Date"), LIBOR will be "LIBOR Telerate" unless
"LIBOR Reuters" is specified on the face of this Note. "LIBOR Telerate" is
the rate for deposits in the LIBOR Currency (as defined below) having the
Index Maturity specified on the face hereof that appears on the Designated
LIBOR Page (as defined below) specified on the face hereof as of 11:00
A.M. London time, on that LIBOR Interest Determination Date. "LIBOR
Reuters" is that rate which is the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used) for deposits
in the LIBOR Currency having the Index Maturity specified on the face
hereof that appear on the Designated LIBOR Page specified on the face
hereof as of 11:00 A.M. London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as aforesaid,
only a single rate is required) on such Designated LIBOR Page. If LIBOR
cannot be determined under this clause (i), LIBOR in respect of the
related LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which the
applicable LIBOR rate cannot be determined under clause (i) above, the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent to provide the Calculation Agent with its offered
quotation for deposits in the LIBOR Currency for the period of the Index
Maturity specified on the face hereof to prime banks in the London
interbank market commencing on the applicable Interest Reset Date at
approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in such LIBOR Currency in such market at such time. If
at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR for such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M. in the applicable Principal Financial
Center (as defined below), on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the LIBOR Currency to leading European
banks, having the Index Maturity specified on the face hereof commencing
on the applicable Interest Reset Date and in a principal amount that is
representative for a single transaction in such LIBOR Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest determination Date will be LIBOR then in
effect on such LIBOR Interest Determination Date.
"LIBOR Currency" means the currency (including composite currencies)
specified on the face hereof for which LIBOR shall be calculated. If no such
currency is specified on the face hereof, the LIBOR Currency shall be U.S.
dollars.
10
<PAGE>
"Designated LIBOR Page" means either (a) if "LIBOR Telerate" is specified
on the face hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank offered rates of major banks for the
applicable LIBOR Currency or (b) if "LIBOR Reuters" is specified on the face
hereof, the display on the Reuters Monitor Money Rates Service for the purpose
of displaying the London interbank offered rates of major banks for the
applicable LIBOR Currency. If neither LIBOR Telerate nor LIBOR Reuters is
specified on the face hereof, LIBOR for the applicable LIBOR Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the LIBOR Currency,
Page 3750) had been specified.
"Principal Financial Center" shall generally be the capital city of the
country of the specified LIBOR Currency, except that with respect to U.S.
dollars, Australian dollars, Canadian dollars, Deutsche Marks, Italian Lire,
Swiss Francs and ECUs, the Principal Financial Center shall be The City of New
York, Sydney, Toronto, Frankfurt, Milan, Zurich and Luxembourg, respectively.
Determination of Federal Funds Rate. The Federal Funds Rate means, with
respect to an Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), the rate on that date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." If H.15(519) is not so
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the Federal Funds Rate
will be the rate on such Federal Funds Rate Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the Federal Funds Rate
for such Federal Funds Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds as of 9:00 A.M., New York City time, on
such Federal Funds Rate Interest Determination Date quoted by each of three
leading brokers of Federal Funds transactions in The City of New York selected
by the Calculation Agent; provided, however, that if fewer than three such
brokers are so quoting such rates, the Federal Funds Rate with respect to such
Federal Funds Rate Interest Determination Date will be the Federal Funds Rate
then in effect on such Federal Funds Rate Interest Determination Date.
Determination of Prime Rate. Prime Rate means, with respect to an Interest
Determination Date (a "Prime Rate Interest Determination Date"), the rate set
forth on such date in H.15(519) under the heading "Bank Prime Loan," or if not
so published prior to 9:00 A.M. New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, then the Prime Rate
will be determined by the Calculation Agent and will be the arithmetic mean of
the rates of interest publicly announced by each bank that appears on the
Reuters Screen U.S. Prime 1 (as defined below) as such bank's prime rate or base
lending rates as in effect for that Prime Rate Interest Determination Date. If
fewer than four such rates but more than one such rate appear on the Reuters
Screen U.S. Prime 1 for the Prime Rate Interest Determination Date, the Prime
Rate will be determined by the Calculation Agent and will be the arithmetic mean
of the prime rates, quoted on the basis of the actual number of days in the year
divided by a 360-day
11
<PAGE>
year, as of the close of business on such Prime Rate Interest Determination Date
by four major money center banks in The City of New York as selected by the
Calculation Agent. If fewer than two such rates appear on the Reuters Screen
U.S. Prime 1, the Prime Rate shall be determined by the Calculation Agent as of
the close of business on the Prime Rate Interest Determination Date, on the
basis of the prime rates, as of the close of business on the Prime Rate Interest
Determination Date, furnished in The City of New York by the appropriate number
of substitute banks or trust companies organized and doing business under the
laws of the United States, or any State thereof, having total equity capital of
at least $500 million and being subject to supervision or examination by federal
or state authority, selected by the Calculation Agent; provided, however, that
if the banks selected as aforesaid are not quoting prime rates, the Prime Rate
for such Prime Rate Interest Determination Date will be the Prime Rate then in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen U.S. Prime 1" means the display designated as page "U.S.
Prime 1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the U.S. Prime 1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. Treasury Rate means, with respect to an
Interest Determination Date (a "Treasury Rate Interest Determination Date"), the
rate for the auction held on such Treasury Rate Interest Determination Date of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof, as published in H.15(519) under the
heading "U.S. Government Securities -- Treasury Bills -- auction average
(investment)." If such rate is not published by 3:00 P.M., New York City time,
on the Calculation Date pertaining to such Treasury Rate Interest Determination
Date, the Treasury Rate will be the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) on such Treasury Rate Interest Determination Date as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury bills having the Index Maturity specified on
the face hereof are not reported as provided by 3:00 P.M., New York City time,
on such Calculation Date, or if no such auction is held on such Treasury Rate
Interest Determination Date, then the Treasury Rate for such Treasury Rate
Interest Determination Date shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, for the issue of Treasury
bills with a remaining maturity closest to the Index Maturity specified on the
face hereof; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate with respect to such Treasury Rate Interest Determination Date will be the
Treasury Rate then in effect on such Treasury Rate Interest Determination Date.
Determination of CMT Rate. CMT Rate means with respect to an Interest
Determination Date relating to a CMT Rate Note or any Floating Rate Note for
which the interest rate is
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<PAGE>
determined by reference to the CMT Rate (a "CMT Rate Interest Determination
Date"), the rate displayed on the designated CMT Telerate Page under the caption
"Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays approximately 3:45 p.m.," under the column for the Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on
such CMT Rate Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as applicable, ended immediately
preceding the week in which the Related CMT Rate Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page, or if not
displayed by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity Rate for the Designated CMT Maturity Index as
published in the relevant H.15(519). If such rate is no longer published, or if
not published by 3:00 p.m. New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date will be such
Treasury Constant Maturity Rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each a "Referenced Dealer") in The
City of New York selected by the Calculation Agent (from five such Referenced
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct, non-callable fixed rate obligations of the United States ("Treasury
Note") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain three such
Treasury Note quotations, the CMT Rate for such CMT Rate Interest Determination
Date will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market side offer prices as of
approximately 3:30 p.m. New York City time on the CMT Rate Interest
Determination Date of three Referenced Dealers in The City of New York (from
five such Referenced Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the even of equality, one of the highest) and
lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Referenced Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor lowest of such
quotes will be eliminated; provided however, that if fewer than three Referenced
Dealers selected by the Calculation Agent are quoting as described herein,
13
<PAGE>
the CMT Rate will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the third preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the quotes for the Treasury Rate Note with
the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated on the face of this Note (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), or the purpose of displaying
Treasury Constant Maturity as reported in H.15(519). If no such page is
specified, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury Securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the fact of this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of this Note, the
Designated CMT Maturity Index shall be two years.
Determination of Eleventh District Cost of Funds Rate. Eleventh District
Cost of Funds Rate means, with respect to an Interest Determination Date
relating to an Eleventh District Cost of Funds Rate (an "Eleventh District Cost
of Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month preceding such Eleventh
District Cost of Funds Rate Interest Determination Date as set forth under the
caption "Eleventh District" on Telerate page 7058 as of 11:00 a.m., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on the Telerate page 7058 on
any related Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the monthly weighted average
cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month next preceding such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate for
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date. "Telerate Page 7058" means the
display on the Dow Jones Telerate Service on such page (or such other page as
may replace such page on the service for the purpose of displaying the Eleventh
District Cost of Funds Rate) for the purpose of displaying the monthly average
cost of the funds paid by member institutions of the Eleventh Federal Home Loan
Bank District.
Notwithstanding the foregoing, 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 on the face hereof, and the interest rate on
this Note will in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by United States law of general application.
14
<PAGE>
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. At the request
of the holder hereof, the Calculation Agent will provide to the holder hereof
the interest rate hereon then in effect and, if determined, the interest rate
which will become effective as of the next Interest Reset Date.
[The provisions of Article Fourteen of the Indenture do not apply to the
Notes.]
If an Event of Default (defined in the Indenture as (i) the Corporation's
failure to pay principal of (or premium, if any, on) the Notes when due, or to
pay interest on the Notes within 30 days after the same becomes due, (ii) the
Corporation's breach of its other covenants contained in this Note or the
Indenture, which breach is not cured within 90 days after written notice by the
Trustee or the holders of at least 25% in outstanding principal amount of all
Securities issued under the Indenture and affected thereby, and (iii) certain
events involving the bankruptcy, insolvency or liquidation 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.
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.
15
<PAGE>
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 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
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
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, the Trustee or the Issuing and Paying Agent may treat the entity 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 shall be affected by notice to the contrary.
All terms used in this Note which 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: 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
owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal and interest to beneficial owners of the Notes by participants of
DTC will be the responsibility of 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.
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<PAGE>
If the Notes may be settled through depositories located in Europe, the
following paragraph is applicable: Transfers of Notes in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
17
<PAGE>
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:_________________________ _________________________
18
<PAGE>
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.
19
<PAGE>
[OPTION TO ELECT REPAYMENT]
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf of
the Trustee) must receive at ______________, or at such other place or places of
which the Corporation shall from time to time notify the Holder of this Note,
not more than 60 nor less than 30 days prior to an Optional Repayment Date, if
any, shown on the face of this Note, 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,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $__________ or an integral multiple Of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date:_______________ correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change whatever.]
20
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is a Renewable Note which initially matures on the Stated Maturity Date shown on
the face of this Note. At each Renewal Date, the maturity of this Note will be
automatically extended to the corresponding New Maturity Date unless the holder
of this Note delivers a completed Extension Termination Notice to the Trustee or
the Paying Agent on behalf of the Trustee not less than 15 nor more than 30 days
prior to the applicable Renewal Date. The Extension Termination Notice may
specify all or a portion of the outstanding principal amount of the Note so long
as the principal amount of the Note remaining outstanding after repayment is an
integral multiple of $1,000. Upon timely delivery of such Extension Termination
Notice, the term of the principal amount of this Note subject to such notice
will be deemed automatically to mature on the Stated Maturity Date or the then
applicable New Maturity Date, as the case may be. The remaining principal
balance of such Note, if any, will be deemed to automatically be extended to the
corresponding New Maturity Date but in no circumstances may such maturity be
extended beyond the Final Maturity Date. Notwithstanding any such extension, the
interest rate applicable to this Note will continue to be calculated as set
forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
---------------- --------------------
21
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note by delivery to the Trustee (or any duly authorized Paying
Agent) of an Extendible Option Notice under the terms of this Note as
supplemented by this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
----------------- -------------
The Corporation may exercise its option with respect to an Extendible Note
by delivery to the Trustee (or any duly appointed Paying Agent) of an Extendible
Option Notice at least 45 but not more than 60 days prior to the Stated Maturity
Date originally in effect with respect to such Note or, if the Stated Maturity
Date of such Note has already been extended, the Extended Maturity Date then in
effect. After such receipt and not later than 40 days prior to the Stated
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Trustee (or any duly appointed Paying Agent) will mail
first class mail, postage prepaid, to the holder of such Extendible Note a
notice (the "Extension Notice") relating to such extension period (the
"Extension Period") setting forth (i) the election of the Corporation to extend
the maturity of such Extendible Note, (ii) the new Extended Maturity Date, (iii)
in the case of a Fixed Rate Note, the interest rate applicable to the Extension
Period or, in the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to 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 (or any duly appointed Paying Agent) of an Extension Notice to the
holder of an Extendible Note, the maturity of such Note 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, such Extendible
Note will have the same terms as prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Maturity Date for an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business
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<PAGE>
Day), the Corporation may, at its option, revoke the interest rate, in the case
of a Fixed Rate Note, or the Spread and/or Spread Multiplier, in the case of a
Floating Rate Note, provided for in the Extension Notice and establish a higher
interest rate, in the case of a Fixed Rate Note, or a higher Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, for the Extension period
by mailing or causing the Trustee (or any duly appointed Paying Agent) to mail
notice of such higher interest rate or higher Spread and/or Spread Multiplier,
as the case may be, first class mail, postage prepaid, to the holder of such
Note. Such notice shall be irrevocable. All Extendible Notes with respect to
which the Maturity Date is extended will bear such higher interest rate, in the
case of a Fixed Rate Note, or higher Spread and/or Spread Multiplier, in the
case of a Floating Rate Note, for the Extension Period.
If the Corporation elects to extend the maturity of an Extendible Note,
the holder of such Note will have the option to elect repayment of such Note by
the Corporation on the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid interest to such date. In
order for an Extendible Note to be so repaid on the Maturity Date, the
Corporation must receive, at least 15 days but not more than 30 days prior to
the Maturity Date then in effect with respect to the Note, (i) the Note with the
form "Option to Elect Repayment" on the reverse of the Note duly completed or
(ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" attached to the Note, will be received by the Trustee (or any duly
appointed Paying Agent) not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Note and duly completed form are received by the Trustee (or any duly
appointed Paying Agent) by such fifth Business Day. Such option may be exercised
by the holder of an Extendible Note for less than the aggregate principal amount
of the Note then outstanding, provided that the principal amount of the Note
remaining outstanding after repayment is an integral multiple of $1,000.
[FORM OF SUBORDINATED REGISTERED NOTE]
If the registered owner of this Note is The Depository Trust Company or a
nominee thereof, this Note is a Global Security and the following legends are
applicable: 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, 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-______
Common Code No. _____________ CUSIP __________
ISIN ________________________
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
BANK OF AMERICA CORPORATION
______% SUBORDINATED NOTE, DUE ____
BANK OF AMERICA CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (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 _____________________, 19___,(2) and to pay interest on said principal sum,
semi-annually(3) in
- --------
(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
(continued...)
<PAGE>
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 of
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 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 __________________. 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
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 such 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 Security
Register of the Corporation relating to the Notes. Any interest not punctually
paid or duly provided for shall be payable as provided in such Indenture.(5)
- -------------------
(2)(...continued)
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.
(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.
2
<PAGE>
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 or on
behalf of the Trustee or 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
Attest:
________________________ By:_________________________
_________ Secretary [Title: ]
[CORPORATE SEAL]
Dated
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee,
Dated:_____________________ [By:___________________________________,
as Authenticating Agent]
By:_____________________________________
Authorized Signatory
4
<PAGE>
[Reverse Side 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 (herein called the "Indenture")
between the Corporation and The Bank of New York, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), as
supplemented by a First Supplemental Indenture dated as of August 28, 1998, 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 principal amount of $__________.
The amount of Notes of this series may be increased at any time. [The Trustee
initially shall act as Security Registrar, Authenticating 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 THEREOF, AGREES TO AND SHALL BE
BOUND BY SUCH PROVISIONS OF THE INDENTURE.
[Except as otherwise provided 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.]
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
- ---------------------
(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.
5
<PAGE>
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,
Notes are exchangeable for a like aggregate principal amount of Notes of
different authorized denominations, as requested by the holder surrendering the
same.
If any interest payment date or maturity date for a Note falls on a day
that is not a Business Day, the interest payment date or maturity date will be
the following day that is a Business Day and the payment of interest or
principal will be made on such next Business Day as if it were made on the date
such payment was due and no additional interest will accrue on the amount so
payable for the period from and after such interest payment date or maturity
date.
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 and any agent of the Corporation or the Trustee 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 nor any such agent 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 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 issued 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 issued 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
6
<PAGE>
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 the 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 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
owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal and interest to beneficial owners of the Notes by participants of
DTC will be the responsibility of 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 in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
7
<PAGE>
----------
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.
----------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
________________________________________________________________________________
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
______________________________________________________________________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:_____________________
_______________________________________
8
<PAGE>
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.
9
IF THE REGISTERED OWNER OF THIS CAPITAL NOTE IS THE DEPOSITORY TRUST COMPANY OR
A NOMINEE THEROF, THIS NOTE IS A GLOBAL SECURITY AND THE FOLLOWING LEGENDS ARE
APPLICABLE. 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 FXR _________ $_________________
BANK OF AMERICA CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES __ CUSIP ___________
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
FINAL MATURITY DATE:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
[ ] This Note is a Renewable Note.
See Attached Rider.
[ ] This Note is an Extendible Note.
See Attached Rider.
BANK OF AMERICA CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (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 on
the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest on said principal
sum, semi-annually in arrears on _____________ and ____________ of each year
(each an "Interest Payment Date"), at the Interest Rate per annum specified
above, until payment of such principal sum has been made or duly provided for,
commencing on the first Interest Payment Date succeeding the Original Issue Date
specified above, unless the Original Issue Date occurs between a Regular Record
Date, as defined below, and the next Interest Payment Date, in which case
commencing on the Interest Payment Date following the next Regular Record Date,
and on the Stated Maturity Date or Final Maturity Date shown above (or any
Redemption Date as defined on the reverse hereof or any Optional Repayment Date
as specified above with respect to which any such option has been exercised,
each
- ------------------------------
(1) Applies only if this Note is a Global Note.
<PAGE>
such Stated Maturity Date, Final Maturity Date, Redemption Date and Optional
Repayment Date being herein referred to as a "Maturity Date" with respect to the
principal payable on such date). 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 be in 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 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 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 Regular Record Date, which shall be the __________ or
the __________, whether or not a Business Day, as the case may be, immediately
preceding such Interest Payment Date; provided, however, that the first payment
of interest on any Note with an Original Issue Date, as specified above, 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 on the Maturity Date will be payable to the person to whom the principal
hereof shall be payable. Any interest not punctually paid or duly provided for
shall be payable as provided in the Indenture. As used herein, "Business Day"
means any day, other than a Saturday or Sunday or a legal holiday in New York,
New York or Charlotte, North Carolina that is not a day on which banks in New
York, New York, Charlotte, North Carolina or_______________________ are
authorized or required by law or regulation to be closed.
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 designated 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, 101 Barclay Street, New York, New York
10286] (the "Corporate Trust Office").
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.
2
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee or 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:_________________________
ATTEST:
By:________________________
________________________ Secretary
3
<PAGE>
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:____________________________,
as Authenticating Agent]
By: __________________________________
Authorized Signatory
4
<PAGE>
[Reverse of Note]
BANK OF AMERICA CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Fixed Rate)
This Medium-Term note is one of a duly authorized series of Securities of
the Corporation unlimited in aggregate principal amount (herein called the
"Notes") issued and to be issued under an Indenture dated as of January 1, 1995
(herein called the "Indenture"), between the Corporation and The Bank of New
York, as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a First Supplemental Indenture
dated as of August 28, 1998, 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
Medium-Term Notes, Series__ (herein called the "Notes"), initially in the
principal amount of [$______________]. The Notes may bear different dates,
mature at different times, bear interest at different rates and vary in such
other ways as are provided in the Indenture. The principal amount of Notes of
this series may be increased at any time.
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.
This Note may be subject to repayment at the option of the registered
holder on the Optional Repayment Date(s), if any, indicated on the face hereof.
IF NO OPTIONAL REPAYMENT DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY
NOT BE SO REPAID AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY
DATE. On any Optional Repayment Date this Note shall be repayable in whole or in
part in increments of $1,000 at the option of the holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof, this Note must be received, with the
form entitled "Option to Elect Repayment" below duly completed, by the Issuing
and Paying Agent at the Corporate Trust Office, or such other address of which
the Corporation shall from time to time notify the holders of the Notes, not
more than 60 nor less than 30 days prior to an Optional Repayment Date. Exercise
of such repayment option by the holder hereof shall be irrevocable.
5
<PAGE>
This Note may be redeemed at the option of the Corporation on any date on
and after the Initial Redemption Date, if any, specified on the face hereof (the
"Redemption Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE
HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR TO
THE STATED MATURITY DATE. 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 in
increments of $1,000 at the option of the Corporation at the applicable
Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. 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 hereof.
If this Note is redeemable at the option of the Corporation, the
"Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof of the principal amount of this Note to be redeemed
and shall decline at each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction, if any, specified on the face hereof of
the principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
[The provisions of Article Fourteen of the Indenture do not apply to
Securities of this Series.]
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 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.
6
<PAGE>
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.
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.
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
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, the Trustee or the Issuing and Paying Agent may treat the entity 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 shall be affected by notice to the contrary.
All terms used in this Note which 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
7
<PAGE>
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 owner of the Notes, as the owner of the
Notes for all purposes, including payment of principal and interest, notices and
voting. Transfer of principal and interest to participants of DTC will be the
responsibility of DTC, and transfer of principal and interest to beneficial
owners of the Notes by participants of DTC will be the responsibility of 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 Noates may be settled through depositories located in Europe, the
following paragraph is applicable: Transfers of Notes in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
8
<PAGE>
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.
9
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or any duly appointed paying
agent) must receive at __________________, or at such other place or places of
which the Corporation shall from time to time notify the registered holder of
this Note, not more than 60 nor less than 30 days prior to an Optional Repayment
Date, if any, shown on the face hereof, 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,
specify the portion hereof (which shall be in increments of $1,000) which the
registered holder elects to have repaid and specify the denomination or
denominations (which shall be $__________ or an integral multiple of $l,000 in
excess of $__________) of the Notes to be issued to the registered holder for
the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
$_______________________ _________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written
Date:________________ upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
10
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is a Renewable Note which initially matures on the Stated Maturity Date shown on
the face hereof. At each Renewal Date, as specified below, the maturity of this
Note will be automatically extended to the corresponding New Maturity Date, as
specified below, unless the registered holder of this Note elects to terminate
the automatic extension of the maturity of this Note or any portion hereof and
delivers a completed Extension Termination Notice to the Trustee (or any duly
appointed paying agent) not less than 15 nor more than 30 days prior to the
applicable Renewal Date. The Extension Termination Notice may specify all or a
portion of the outstanding principal amount of the Note so long as the principal
amount of the Note remaining outstanding after repayment is an integral multiple
of $1,000. Upon timely delivery of such Extension Termination Notice, the term
of the principal amount of this Note subject to such notice will be deemed
automatically to mature on the Stated Maturity Date or the then applicable New
Maturity Date, as the case may be. The remaining principal balance of such Note,
if any, will be deemed to automatically be extended to the corresponding New
Maturity Date but in no circumstances may such maturity be extended beyond the
Final Maturity Date set forth below. An election to terminate the automatic
extension of the maturity hereof shall be irrevocable and binding on each holder
hereof. Notwithstanding any such extension, the interest rate applicable to this
Note will continue to be calculated as set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
--------------- -------------------
11
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note for one or more whole year periods, as set forth below
(each, an "Extension Period"), up to but not beyond the Final Maturity Date set
forth below, under the terms of this Note as supplemented by this Extendible
Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
----------------- ---------------
The Corporation may exercise its option with respect hereto by delivery to
the Trustee (or any duly appointed paying agent) of notice of such exercise at
least 45 but not more than 60 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 days prior to the Stated
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Trustee (or any duly appointed Paying Agent) will mail
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 Corporation to extend the maturity hereof,
(ii) the new Extended Maturity Date, (iii) the interest rate applicable to 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 (or any duly appointed
Paying Agent) of an Extension Notice to the registered holder hereof, the
maturity hereof shall be extended automatically as set forth in such 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 days prior to the
Maturity Date hereof (or, if such date is not a Business Day, on the immediately
succeeding Business Day), the Corporation may, at its option, 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 Trustee (or any
duly appointed paying agent) to mail notice of such higher interest rate, first
class mail, postage
12
<PAGE>
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 Corporation elects to extend the maturity hereof, the registered
holder hereof will have the option to elect repayment hereof by the Corporation
on the 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 Maturity Date, the Corporation must receive, at least 15
days but not more than 30 days prior to the Maturity Date then in effect with
respect hereto, (i) this Note with the form "Option to Elect Repayment" on the
reverse hereof duly completed or (ii) a telegram, telex, facsimile transmission
or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the registered holder hereof, the
principal amount hereof to 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 (or any duly appointed paying agent) not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee (or any duly appointed 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 an
integral multiple of $1,000.
13
If the registered owner of this Note is The Depository Trust Company or
a nominee thereof, this Note is a Global Security and the following legends are
applicable: 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.(1)
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 FLR _______ $_________
BANK OF AMERICA CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Floating Rate)
CUSIP _______________
<TABLE>
<CAPTION>
<S> <C>
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR ____________
INTEREST RATE (IF DIFFERENT): ___Federal Funds Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate Page:____
SPREAD: CMT Maturity Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE: ___Other:________________
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: |_| This Note is a Renewable
INTEREST RATE RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: |_| This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
</TABLE>
- ------------------------------------
(1) Applies only if this Note is a Global Security.
<PAGE>
Bank of America Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (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 on the Stated Maturity
Date specified above (except to the extent redeemed or repaid prior to the
Stated Maturity Date), and to pay interest thereon at a rate per annum equal to
the Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions on the reverse hereof, depending upon the appropriate Base Rate and
Index Maturity specified above, until the principal hereof is paid or duly made
available for payment. The Corporation will pay interest on the Interest Payment
Dates specified above, commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, unless the Original Issue
Date occurs between a Regular Record Date, as defined below, and the next
Interest Payment Date, in which case commencing on the Interest Payment Date
following the next Regular Record Date, and on the Stated Maturity Date or Final
Maturity Date shown above (or any Redemption Date as defined on the reverse
hereof or any Optional Repayment Date with respect to which any such option has
been exercised, each such Stated Maturity Date, Final Maturity Date, Redemption
Date and Optional Repayment Date being herein referred to as a "Maturity Date"
with respect to the principal repayable on such date).
Interest on this Note will accrue from the Original Issue Date specified
above until the principal amount is paid and will be computed as hereinafter
described. Interest payable on this Note on any Interest Payment Date or the
Maturity Date will include 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), to but excluding such Interest Payment Date or
Maturity Date, as the case may be; provided, however, that if the Interest Reset
Period specified above is daily or weekly, interest payable on any Interest
Payment Date or the Maturity Date will include interest accrued from but
excluding the Regular Record Date through 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 and including the Regular
Record Date preceding such Interest Payment Date, except that interest payable
on any such Maturity Date will include interest accrued to, but excluding, such
Maturity Date. If any Interest Payment Date falls on a day which is not a
Business Day, as defined below, such Interest Payment Date shall be the
following day that is a Business Day, except that if the Base Rate is LIBOR, if
such next Business Day falls in the next calendar month, such Interest Payment
Date will be the preceding day that is a Business Day; and if the Maturity Date
falls on a day which is not a Business Day, principal or interest payable with
respect to such Maturity Date will be paid on the next Business Day with the
same force and effect as if made on such Maturity Date, and no additional
interest shall accrue for the period from and after such Maturity Date. 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 at the close of business on the date 15 calendar days prior to such
Interest Payment Date, whether or not a Business Day (the "Regular Record
Date"); provided, however, that the first payment of interest
2
<PAGE>
on any Note with an Original Issue Date, as specified above, 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 on the
Maturity Date will be payable to the person to whom the principal hereof shall
be payable. Any such interest not punctually paid or duly provided for shall be
payable as provided in the Indenture. As used herein, "Business Day" means any
day, other than a Saturday or Sunday or a legal holiday in New York, New York or
Charlotte, North Carolina, that (i) is not a day on which banking institutions
in New York, New York, Charlotte, North Carolina or ___________ are authorized
or required by law or regulation to be closed and (ii) if the Base Rate is
LIBOR, is a day on which dealings in deposits on U.S. dollars are transacted in
the London interbank market.
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 designated 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 from the 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, as Issuing
and Paying Agent, 101 Barclay Street, New York, New York 10286] (the "Corporate
Trust Office").
Reference is hereby 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 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.
3
<PAGE>
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: ]
ATTEST:
- ----------------------------
_________ Secretary
4
<PAGE>
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:
as Authenticating Agent]
By:___________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
BANK OF AMERICA CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of Securities of
the Corporation unlimited in aggregate principal amount (herein called the
"Notes") issued and to be issued under an Indenture dated as of January 1, 1995
(herein called the "Indenture"), between the Corporation and The Bank of New
York, as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a First Supplemental Indenture
dated as of August 28, 1998, 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
Medium-Term Notes, Series ___, initially in the principal amount of
[$____________]. The principal amount of Notes of this series may be increased
at any time. The Notes may bear different dates, mature at different times, bear
interest at different rates and vary in such other ways as are provided in the
Indenture.
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.
This Note may be subject to repayment at the option of the holder only if
Optional Repayment Date(s) are indicated on the face hereof. IF NO OPTIONAL
REPAYMENT DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID
AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any
Optional Repayment Date, this Note shall be repayable in whole or in part in
increments of $1,000 at the option of the holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof, this Note must be received, with the
form below entitled "Option to Elect Repayment" duly completed, by the Issuing
and Paying Agent at the Corporate Trust Office, or such other address of which
the Corporation shall from time to time notify the holders of the Notes, not
more than 60 nor less than 30 days prior to an Optional Repayment Date. Exercise
of such repayment option by the holder hereof shall be irrevocable.
6
<PAGE>
This Note may be redeemed at the option of the Corporation on any date on
and after the Initial Redemption Date, if any, specified on the face hereof (the
"Redemption Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE
HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR TO
THE STATED MATURITY DATE. 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 in
increments of $1,000 at the option of the Corporation at the applicable
Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. 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 Holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the Corporation, the
"Redemption Price" shall initially be the Initial Redemption Percentage,
specified on the face hereof, of the principal amount of this Note to be
redeemed and shall decline at each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction, if any, specified on the face
hereof, of the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
Accrued interest hereon shall be calculated by multiplying the face amount
hereof by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day from and
including Original Issue Date, or from but excluding the last date to which
interest has been paid, as the case may be, to and including the date for which
accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day shall be computed by dividing the interest rate in
effect on such day by 360 or, in the case of Notes having the Treasury Rate or
the CMT Rate as their Base Rate, by the actual number of days in the year.
The Base Rate (as defined herein) with respect to this Note may be (i) the
CD Rate, (ii) the Commercial Paper Rate, (iii) LIBOR, (iv) the Federal Funds
Rate, (v) the Prime Rate, (vi) the Treasury Rate, (vii) the CMT Rate, (viii) the
Eleventh District Cost of Funds Rate or (ix) such other rate as will be
described on the face hereof and a rider to this Note.
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 shown on the face hereof (i) plus or minus the Spread, if
any, or (ii) multiplied by the Spread Multiplier, if any, specified on the face
hereof. 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 (as defined below) 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 next preceding Interest
Reset Date, provided that (i) the interest rate in effect from the Original
Issue Date to the first Interest Reset Date shall be the Initial Interest Rate
specified on the face hereof, and (ii) the interest rate in effect for the ten
calendar days immediately prior to the Maturity Date shall be the rate in effect
on the tenth calendar day preceding such Maturity Date. If any Interest Reset
Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed
7
<PAGE>
to the next day that is a Business Day, except that if the Base Rate specified
on the face hereof is LIBOR, if such next Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day. The term "Final Interest Payment Period" means the period from the
final Interest Reset Date to the Maturity Date.
The Interest Determination Date with respect to any Note that has as its
Base Rate the CD Rate, the Commercial Paper Rate, the Federal Funds rate, the
Prime Rate or the CMT Rate will be the second Business Day preceding the
applicable Interest Reset Date. The Interest Determination Date with respect to
any Note that has LIBOR as its base rate will be the second London Banking Day
(as defined below) preceding the applicable Interest Reset Date. The Interest
Determination Date with respect to any Note that has the Eleventh District Cost
of Funds Rate as its Base Rate will be the last Business Day of the month
immediately preceding the applicable Interest Reset Date in which the Federal
Home Loan Bank of San Francisco (the "FHLB") publishes such Index (as defined
below). The Interest Determination Date with respect to any Note that has the
Treasury Rate as its Base Rate will be the day of the week in which the
applicable Interest Reset Date falls on which Treasury bills of the Index
Maturity specified on the face hereof normally would be auctioned; provided,
however, that if as a result of a legal holiday an auction is held on the Friday
of the week preceding the Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that
if an auction shall fall on any Interest Reset Date then the Interest Reset Date
shall instead be the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest Determination Date shall
be the earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day next preceding the applicable Interest Payment Date or
Maturity Date, as the case may be.
All percentages resulting from any calculation on the Notes will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the Notes will be
rounded to the nearest cent (with one-half cent being rounded upward).
Determination of CD Rate. CD Rate means, with respect to an Interest
Determination Date (a "CD Rate Interest Determination Date"), the rate on such
CD Rate Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof, as such rate is
published by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Federal Reserve Board ("H.15(519)"), under the
heading "CDS (Secondary Market)," or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit of the Index Maturity
specified on the face hereof, as published by the Federal Reserve Bank of New
York in its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities"
8
<PAGE>
("Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not published in either H.15(519) or the Composite Quotations by 3:00
P.M., New York City time, on such Calculation Date, then the CD Rate on such CD
Rate Interest Determination Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent for negotiable certificates
of deposit of major United States money center banks with a remaining maturity
closest to the Index Maturity specified on the face hereof in denominations of
$5,000,000; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the CD Rate for such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
Determination of Commercial Paper Rate. The Commercial Paper Rate means,
with respect to an Interest Determination Date (a "Commercial Paper Rate
Interest Determination Date"), the Money Market Yield (as defined below) of the
rate on such date for commercial paper having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading "Commercial Paper."
In the event such rate is not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Rate Interest Determination
Date, the Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If such rate is not
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, the Commercial Paper Rate for that
Commercial Paper Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates as of 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper of
the Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA", or the equivalent, by a nationally recognized
securities rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate with respect to such Commercial Paper Rate Interest
Determination Date will be the Commercial Paper Rate then in effect on such
Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be the yield (expressed as a percentage rounded
to the nearest one ten-thousandth of a percent, with five one hundred-
thousandths of a percent rounded upward) calculated in accordance with the
following formula:
Money Market Yield = D x 360
--------------------------
360 - (D x M x 100
9
<PAGE>
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal, and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of LIBOR. LIBOR means the rate determined by the Calculation
Agent in accordance with the following provisions:
(i) With respect to an Interest Determination Date (a "LIBOR
Interest Determination Date"), LIBOR will be "LIBOR Telerate" unless
"LIBOR Reuters" is specified on the face of this Note. "LIBOR Telerate" is
the rate for deposits in the LIBOR Currency (as defined below) having the
Index Maturity specified on the face hereof that appears on the Designated
LIBOR Page (as defined below) specified on the face hereof as of 11:00
A.M. London time, on that LIBOR Interest Determination Date. "LIBOR
Reuters" is that rate which is the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used) for deposits
in the LIBOR Currency having the Index Maturity specified on the face
hereof that appear on the Designated LIBOR Page specified on the face
hereof as of 11:00 A.M. London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as aforesaid,
only a single rate is required) on such Designated LIBOR Page. If LIBOR
cannot be determined under this clause (i), LIBOR in respect of the
related LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which the
applicable LIBOR rate cannot be determined under clause (i) above, the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent to provide the Calculation Agent with its offered
quotation for deposits in the LIBOR Currency for the period of the Index
Maturity specified on the face hereof to prime banks in the London
interbank market commencing on the applicable Interest Reset Date at
approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in such LIBOR Currency in such market at such time. If
at least two such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, LIBOR for such
LIBOR Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M. in the applicable Principal Financial
Center (as defined below), on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the LIBOR Currency to leading European
banks, having the Index Maturity specified on the face hereof commencing
on the applicable Interest Reset Date and in a principal amount that is
representative for a single transaction in such LIBOR Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
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determined on such LIBOR Interest determination Date will be LIBOR then in
effect on such LIBOR Interest Determination Date.
"LIBOR Currency" means the currency (including composite currencies)
specified on the face hereof for which LIBOR shall be calculated. If no such
currency is specified on the face hereof, the LIBOR Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Telerate" is specified
on the face hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank offered rates of major banks for the
applicable LIBOR Currency or (b) if "LIBOR Reuters" is specified on the face
hereof, the display on the Reuters Monitor Money Rates Service for the purpose
of displaying the London interbank offered rates of major banks for the
applicable LIBOR Currency. If neither LIBOR Telerate nor LIBOR Reuters is
specified on the face hereof, LIBOR for the applicable LIBOR Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the LIBOR Currency,
Page 3750) had been specified.
"Principal Financial Center" shall generally be the capital city of the
country of the specified LIBOR Currency, except that with respect to U.S.
dollars, Australian dollars, Canadian dollars, Deutsche Marks, Italian Lire,
Swiss Francs and ECUs, the Principal Financial Center shall be The City of New
York, Sydney, Toronto, Frankfurt, Milan, Zurich and Luxembourg, respectively.
Determination of Federal Funds Rate. The Federal Funds Rate means, with
respect to an Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), the rate on that date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." If H.15(519) is not so
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the Federal Funds Rate
will be the rate on such Federal Funds Rate Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the Federal Funds Rate
for such Federal Funds Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds as of 9:00 A.M., New York City time, on
such Federal Funds Rate Interest Determination Date quoted by each of three
leading brokers of Federal Funds transactions in The City of New York selected
by the Calculation Agent; provided, however, that if fewer than three such
brokers are so quoting such rates, the Federal Funds Rate with respect to such
Federal Funds Rate Interest Determination Date will be the Federal Funds Rate
then in effect on such Federal Funds Rate Interest Determination Date.
Determination of Prime Rate. Prime Rate means, with respect to an Interest
Determination Date (a "Prime Rate Interest Determination Date"), the rate set
forth on such date in H.15(519) under the heading "Bank Prime Loan," or if not
so published prior to 9:00 A.M. New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, then the
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<PAGE>
Prime Rate will be determined by the Calculation Agent and will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen U.S. Prime 1 (as defined below) as such bank's
prime rate or base lending rates as in effect for that Prime Rate Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen U.S. Prime 1 for the Prime Rate Interest
Determination Date, the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the prime rates, quoted on the basis of the
actual number of days in the year divided by a 360-day year, as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York as selected by the Calculation Agent. If
fewer than two such rates appear on the Reuters Screen U.S. Prime 1, the Prime
Rate shall be determined by the Calculation Agent as of the close of business on
the Prime Rate Interest Determination Date, on the basis of the prime rates, as
of the close of business on the Prime Rate Interest Determination Date,
furnished in The City of New York by the appropriate number of substitute banks
or trust companies organized and doing business under the laws of the United
States, or any State thereof, having total equity capital of at least $500
million and being subject to supervision or examination by federal or state
authority, selected by the Calculation Agent; provided, however, that if the
banks selected as aforesaid are not quoting prime rates, the Prime Rate for such
Prime Rate Interest Determination Date will be the Prime Rate then in effect on
such Prime Rate Interest Determination Date.
"Reuters Screen U.S. Prime 1" means the display designated as page "U.S.
Prime 1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the U.S. Prime 1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. Treasury Rate means, with respect to an
Interest Determination Date (a "Treasury Rate Interest Determination Date"), the
rate for the auction held on such Treasury Rate Interest Determination Date of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified on the face hereof, as published in H.15(519) under the
heading "U.S. Government Securities -- Treasury Bills -- auction average
(investment)." If such rate is not published by 3:00 P.M., New York City time,
on the Calculation Date pertaining to such Treasury Rate Interest Determination
Date, the Treasury Rate will be the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) on such Treasury Rate Interest Determination Date as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the auction of Treasury bills having the Index Maturity specified on
the face hereof are not reported as provided by 3:00 P.M., New York City time,
on such Calculation Date, or if no such auction is held on such Treasury Rate
Interest Determination Date, then the Treasury Rate for such Treasury Rate
Interest Determination Date shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, for the issue of Treasury
bills with a remaining maturity closest to the Index
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Maturity specified on the face hereof; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate with respect to such Treasury Rate Interest
Determination Date will be the Treasury Rate then in effect on such Treasury
Rate Interest Determination Date.
Determination of CMT Rate. CMT Rate means with respect to an Interest
Determination Date relating to a CMT Rate Note or any Floating Rate Note for
which the interest rate is determined by reference to the CMT Rate (a "CMT Rate
Interest Determination Date"), the rate displayed on the designated CMT Telerate
Page under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the Related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no longer
published, or if not published by 3:00 p.m. New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each a "Referenced Dealer") in The City of New York selected by the Calculation
Agent (from five such Referenced Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct, non-callable fixed rate
obligations of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market side offer prices as of approximately 3:30 p.m. New York
City time on the CMT Rate Interest Determination Date of three Referenced
Dealers in The City of New York (from five such Referenced Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the even of
equality, one of the highest) and lowest quotation (or, in
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<PAGE>
the event of equality, one of the lowest)), for Treasury Notes with original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four (and
not five) of such Referenced Dealers are quoting as described above, then the
CMT Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor lowest of such quotes will be eliminated; provided
however, that if fewer than three Referenced Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes with
an original maturity as described in the third preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the quotes
for the Treasury Rate Note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated on the face of this Note (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), or the purpose of displaying
Treasury Constant Maturity as reported in H.15(519). If no such page is
specified, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury Securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the fact of this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of this Note, the
Designated CMT Maturity Index shall be two years.
Determination of Eleventh District Cost of Funds Rate. Eleventh District
Cost of Funds Rate means, with respect to an Interest Determination Date
relating to an Eleventh District Cost of Funds Rate (an "Eleventh District Cost
of Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month preceding such Eleventh
District Cost of Funds Rate Interest Determination Date as set forth under the
caption "Eleventh District" on Telerate page 7058 as of 11:00 a.m., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on the Telerate page 7058 on
any related Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the monthly weighted average
cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month next preceding such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate for
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date. "Telerate Page 7058" means the
display on the Dow Jones Telerate Service on such page (or such other page as
may replace such page on the service for the purpose of displaying the Eleventh
District Cost of Funds Rate) for the purpose of displaying the monthly average
cost of the funds paid by member institutions of the Eleventh Federal Home Loan
Bank District.
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<PAGE>
Notwithstanding the foregoing, 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 on the face hereof, and the interest rate on
this Note will in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by United States law of general application.
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. At the request
of the holder hereof, the Calculation Agent will provide to the holder hereof
the interest rate hereon then in effect and, if determined, the interest rate
which will become effective as of the next Interest Reset Date.
[The provisions of Article Fourteen of the Indenture do not apply to the
Notes.]
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 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
15
<PAGE>
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.
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 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
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
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, the Trustee or the Issuing and Paying Agent may treat the entity 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 shall be affected by notice to the contrary.
All terms used in this Note which 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: 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
owner of the Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal and interest to beneficial owners of the Notes by participants of
DTC will be the responsibility of 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
16
<PAGE>
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 in Europe may be effected
through the facilities of Cedelbank, societe anonyme, and Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
17
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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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<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 (or the Paying Agent on behalf of
the Trustee) must receive at ______________, or at such other place or places of
which the Corporation shall from time to time notify the Holder of this Note,
not more than 60 nor less than 30 days prior to an Optional Repayment Date, if
any, shown on the face of this Note, 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,
specify the portion hereof (which shall be in increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $__________ or an integral multiple Of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the portion of this
Note not being repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date:_______________ correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
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<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is a Renewable Note which initially matures on the Stated Maturity Date shown on
the face of this Note. At each Renewal Date, the maturity of this Note will be
automatically extended to the corresponding New Maturity Date unless the holder
of this Note delivers a completed Extension Termination Notice to the Trustee or
the Paying Agent on behalf of the Trustee not less than 15 nor more than 30 days
prior to the applicable Renewal Date. The Extension Termination Notice may
specify all or a portion of the outstanding principal amount of the Note so long
as the principal amount of the Note remaining outstanding after repayment is an
integral multiple of $1,000. Upon timely delivery of such Extension Termination
Notice, the term of the principal amount of this Note subject to such notice
will be deemed automatically to mature on the Stated Maturity Date or the then
applicable New Maturity Date, as the case may be. The remaining principal
balance of such Note, if any, will be deemed to automatically be extended to the
corresponding New Maturity Date but in no circumstances may such maturity be
extended beyond the Final Maturity Date. Notwithstanding any such extension, the
interest rate applicable to this Note will continue to be calculated as set
forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
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<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed that this Note
is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note by delivery to the Trustee (or any duly authorized Paying
Agent) of an Extendible Option Notice under the terms of this Note as
supplemented by this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
---------------- --------------
The Corporation may exercise its option with respect to an Extendible Note
by delivery to the Trustee (or any duly appointed Paying Agent) of an Extendible
Option Notice at least 45 but not more than 60 days prior to the Stated Maturity
Date originally in effect with respect to such Note or, if the Stated Maturity
Date of such Note has already been extended, the Extended Maturity Date then in
effect. After such receipt and not later than 40 days prior to the Stated
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Trustee (or any duly appointed Paying Agent) will mail
first class mail, postage prepaid, to the holder of such Extendible Note a
notice (the "Extension Notice") relating to such extension period (the
"Extension Period") setting forth (i) the election of the Corporation to extend
the maturity of such Extendible Note, (ii) the new Extended Maturity Date, (iii)
in the case of a Fixed Rate Note, the interest rate applicable to the Extension
Period or, in the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to 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 (or any duly appointed Paying Agent) of an Extension Notice to the
holder of an Extendible Note, the maturity of such Note 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, such Extendible
Note will have the same terms as prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Maturity Date for an Extendible Note (or, if such date is not a Business Day, on
the immediately succeeding Business Day), the Corporation may, at its option,
revoke the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, provided for
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<PAGE>
in the Extension Notice and establish a higher interest rate, in the case of a
Fixed Rate Note, or a higher Spread and/or Spread Multiplier, in the case of a
Floating Rate Note, for the Extension period by mailing or causing the Trustee
(or any duly appointed Paying Agent) to mail notice of such higher interest rate
or higher Spread and/or Spread Multiplier, as the case may be, first class mail,
postage prepaid, to the holder of such Note. Such notice shall be irrevocable.
All Extendible Notes with respect to which the Maturity Date is extended will
bear such higher interest rate, in the case of a Fixed Rate Note, or higher
Spread and/or Spread Multiplier, in the case of a Floating Rate Note, for the
Extension Period.
If the Corporation elects to extend the maturity of an Extendible Note,
the holder of such Note will have the option to elect repayment of such Note by
the Corporation on the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid interest to such date. In
order for an Extendible Note to be so repaid on the Maturity Date, the
Corporation must receive, at least 15 days but not more than 30 days prior to
the Maturity Date then in effect with respect to the Note, (i) the Note with the
form "Option to Elect Repayment" on the reverse of the Note duly completed or
(ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" attached to the Note, will be received by the Trustee (or any duly
appointed Paying Agent) not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Note and duly completed form are received by the Trustee (or any duly
appointed Paying Agent) by such fifth Business Day. Such option may be exercised
by the holder of an Extendible Note for less than the aggregate principal amount
of the Note then outstanding, provided that the principal amount of the Note
remaining outstanding after repayment is an integral multiple of $1,000.
22
EXHIBIT 4.12
SERIES_________ SERIES_________
PREFERRED STOCK PREFERRED STOCK
BANK OF AMERICA CORPORATION
Organized under the laws of
Delaware
Number NP ______ Shares ______
See Reverse for
Certain Definitions CUSIP _____________________
This Certificate is transferable
in New York, New York and
in _____________________
This certifies that ______________________ is the owner of
__________________________________ fully paid and non-assessable shares of the
series _________ preferred stock of Bank of America Corporation transferable in
person or by duly authorized attorney upon surrender of this certificate
properly endorsed. This certificate and the shares represented hereby are
subject to the provisions of the Restated Certificate of Incorporation, all
amendments thereto, the Certificate of Designation for this series, and the
Bylaws of the Corporation, and to the rights, preferences and voting powers of
the Preferred Stock of the Corporation now or hereinafter outstanding, the terms
of all such provisions, rights, preferences and voting powers being incorporated
herein by reference. This certificate is not valid until countersigned by the
Transfer Agent and registered by the Registrar.
Witness the facsimile seal and facsimile signatures of the duly authorized
officers of the Corporation.
Dated
Secretary Chief Executive Officer
President
Countersigned and Registered:
[NAME OF TRANSFER AGENT]
Transfer Agent and Registrar
By
Authorized Officer
<PAGE>
[Reverse Side of Preferred Stock Certificate]
BANK OF AMERICA CORPORATION
BANK OF AMERICA CORPORATION'S AUTHORIZED CAPITAL STOCK INCLUDES PREFERRED
STOCK, INCLUDING THIS SERIES _________________________ PREFERRED STOCK, WHICH,
WHEN ISSUED, SHALL HAVE CERTAIN PREFERENCES OR SPECIAL RIGHTS IN THE PAYMENT OF
DIVIDENDS, IN VOTING, UPON LIQUIDATION, OR OTHERWISE. THE CORPORATION WILL, UPON
REQUEST, FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE , PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OFSTOCK OR SERVICE THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS AND A COPY OF THE
PORTIONS OF THE RESTATED CERTIFICATE OF INCORPORATION OR CERTIFICATE OF
DESIGNATION CONTAINING THE DESIGNATIONS, PREFERENCES, LIMITATIONS AND RELATIVE
RIGHTS OF ALL SHARES AND ANY CLASS OR SERIES THEREOF. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE.
------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
------------
The following abbreviations, when used in the inscription on the face of
this certificate, 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.
2
<PAGE>
------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------
| |
| |
-------------------------------------------
(Please print or typewrite name and address of assignee)
_______________________________________________________________________________
_______________________________________________________________ shares of the
capital stock represented by the within Certificate and does hereby irrevocably
constitute and appoint _________________________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated:
Signature ________________________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed:
_______________________________________
_______________________________________
3
EXHIBIT 4.13
[FACE OF SPECIMEN CERTIFICATE]
COMMON STOCK COMMON STOCK
NUMBER SHARES
BAC
PAR VALUE $.01 PER SHARE
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, N.Y. AND RIDGEFIELD PARK, N.J. CUSIP 060505 10 4
BANK OF AMERICA CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
SEE REVERSE FOR
CERTAIN DEFINITIONS
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Bank of America Corporation transferable in person or by duly authorized
attorney upon surrender of this certificate properly endorsed. This certificate
and the shares represented hereby are subject to the provisions of the
Certificate of Incorporation, all amendments thereto, and the By-Laws of the
Corporation, and to the rights, preferences and voting powers of the Preferred
Stock of the Corporation now or hereafter outstanding; the terms of all such
provisions, rights, preferences and voting powers being incorporated herein by
reference. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
Witness the facsimile seal and the facsimile signatures of the duly
authorized officers of the Corporation.
Dated:
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT
BY AND REGISTRAR
AUTHORIZED OFFICER SECRETARY CHIEF EXECUTIVE OFFICER
[CORPORATE SEAL]
<PAGE>
[REVERSE OF SPECIMEN CERTIFICATE]
Bank of America Corporation
BANK OF AMERICA CORPORATION'S AUTHORIZED CAPITAL STOCK INCLUDES
PREFERRED STOCKS WHICH, WHEN ISSUED, SHALL HAVE CERTAIN PREFERENCES OR SPECIAL
RIGHTS IN THE PAYMENT OF DIVIDENDS, IN VOTING, UPON LIQUIDATION, OR OTHERWISE.
THE CORPORATION WILL, UPON REQUEST, FURNISH TO ANY SHAREHOLDER WITHOUT CHARGE
INFORMATION IN WRITING AS TO THE NUMBER OF SUCH SHARES OF EACH CLASS OR SERIES
OF SUCH PREFFERED STOCKS AUTHORIZED AND OUTSTANDING AND A COPY OF THE PORTIONS
OF THE CERTIFICATE OF INCORPORATION OR RESOLUTIONS CONTAINING THE DESIGNATIONS,
PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ALL SHARES AND ANY CLASS OR
SERIES THEREOF. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE TRANSFER AGENT NAMED
ON THE FACE OF THIS CERTIFICATE.
---------------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
---------------------
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT-______CUSTODIAN_______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants, with right of Act_________________________
survivorship and not as tenants (State)
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _______________________ hereby sell, assign
and transfer unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
______________________________________________________________________ shares of
the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________ Attorney to transfer the
said stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated _______________________________
Signature _________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
<TABLE>
<CAPTION>
<S> <C>
SIGNATURE(S) GUARANTEED: _______________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
</TABLE>
EXHIBIT 4.14
================================================================================
DEPOSIT AGREEMENT
among
BANK OF AMERICA CORPORATION,
_____________________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of __________, 19__
================================================================================
i
<PAGE>
TABLE OF CONTENTS
Page
PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Shares, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. FORM AND TRANSFER OF RECEIPTS..................................2
Section 2.2. DEPOSIT OF SHARES; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF................................................3
Section 2.3. REDEMPTION OF SHARES...........................................4
Section 2.4. REGISTRATION OF TRANSFER OF RECEIPTS...........................5
Section 2.5. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS
AND WITHDRAWAL OF SHARES.......................................5
Section 2.6. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
EXCHANGE OF RECEIPTS...........................................6
Section 2.7. LOST RECEIPTS, ETC.............................................6
Section 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS...........6
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION..............6
Section 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.................7
Section 3.3. WARRANTY AS TO SHARES..........................................7
ARTICLE IV
The Deposited Securities; Notices
Section 4.1. CASH DISTRIBUTIONS.............................................7
Section 4.2. DISTRIBUTIONS OTHER THAN CASH..................................7
Section 4.3. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.................8
Section 4.4. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS
OF RECEIPTS....................................................9
ii
<PAGE>
Section 4.5. VOTING RIGHTS..................................................9
Section 4.6. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC.........................................9
Section 4.7. INSPECTION OF REPORTS.........................................10
Section 4.8. LISTS OF RECEIPT HOLDERS......................................10
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR.........................................10
Section 5.2. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY.............11
Section 5.3. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY.....................................11
Section 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY..........................................12
Section 5.5. CORPORATE NOTICES AND REPORTS.................................12
Section 5.6. INDEMNIFICATION BY THE COMPANY................................13
Section 5.7. CHARGES AND EXPENSES..........................................13
ARTICLE VI
Amendment and Termination
Section 6.1. AMENDMENT.....................................................13
Section 6.2. TERMINATION...................................................13
ARTICLE VII
Miscellaneous
Section 7.1. COUNTERPARTS..................................................14
Section 7.2. EXCLUSIVE BENEFIT OF PARTIES..................................14
Section 7.3. INVALIDITY OF PROVISIONS......................................14
Section 7.4. NOTICES.......................................................14
Section 7.5. DEPOSITARY'S AGENTS...........................................15
Section 7.6. HOLDERS OF RECEIPTS ARE PARTIES...............................15
Section 7.7. GOVERNING LAW.................................................15
Section 7.8. INSPECTION OF DEPOSIT AGREEMENT...............................15
Section 7.9. HEADINGS......................................................15
Testimonium.................................................................16
Signatures..................................................................17
Exhibit A: Depositary Receipt..............................................18
iii
<PAGE>
DEPOSIT AGREEMENT
dated as of __________, 19__,
among
BANK OF AMERICA CORPORATION,
a Delaware corporation,
____________________, a __________ corporation,
and the holders
from time to time of the Receipts
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [insert designation of preferred stock],
par value _____, of BANK OF AMERICA CORPORATION with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts (as hereinafter defined) evidencing Depositary Shares (as hereinafter
defined), in respect of the Shares (as hereinafter defined) so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
attached hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate of Designation" shall mean the Certificate of Designation
filed with the Secretary of State of Delaware establishing the Shares as a
series of preferred stock of the Company.
"Company" shall mean Bank of America Corporation, a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean depositary shares, each representing
[specify fraction] interest in a Share and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
1
<PAGE>
"Depositary's Office" shall mean the principal office of the Depositary in
[The City of New York], at which at any particular time its depositary receipt
business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfer of Receipts as herein provided.
"Shares" shall mean shares of the Company's [insert designation of
preferred stock], without par value.
ARTICLE II
Form of Receipts, Deposit of Shares, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A attached to this Deposit
Agreement and incorporated herein by reference, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company or
any holder of Shares, as the case may be, delivered in compliance with Section
2.2, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, photocopied or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at the office described in Section 2.2, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Agreement, and with respect to the Shares, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; PROVIDED, HOWEVER, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are counter-signed by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose
2
<PAGE>
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts shall have been appointed, by
manual or facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Shares, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; PROVIDED, HOWEVER, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2. DEPOSIT OF SHARES; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit Shares under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for the Shares to be
deposited, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Depositary, the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing interests in such
deposited Shares.
Deposited Shares shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Shares
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Shares
on the books of the company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt for the number of Depositary Shares relating to the
Shares so deposited and registered in such name
3
<PAGE>
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt at the Depositary's Office or such other
offices, if any, as the Depositary may designate. Delivery at other offices
shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations, or other reclassifications
affecting the Shares, or in the case of dividends or other distributions of
Shares, if any, there shall be deposited hereunder not more than __________
shares of Shares.
Section 2.3. REDEMPTION OF SHARES. Whenever the Company shall elect to
redeem Shares, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 40 nor more than 60 days' notice of the date
of such proposed redemption of Shares. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of the Shares to be redeemed, the Depositary shall redeem the Depositary
Shares relating to such Shares. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares representing the Shares to be redeemed, first-class postage prepaid, not
less than 30 and not more than 45 days prior to the date fixed for redemption of
such Shares and Depositary Shares (the "Redemption Date"), to the Record Holders
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Shares underlying the Depositary
Shares to be redeemed will cease to accumulate at the close of business on the
business day next preceding such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected by lot or pro rata as may be determined by the
Depositary.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the Shares
to be redeemed by it as set forth in the Company's notice provided for in the
preceding paragraph), all dividends in respect of the Shares so called for
redemption shall cease to accumulate, the Depositary Shares being redeemed from
such proceeds shall be deemed no longer to be outstanding, all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [specify fraction] of the redemption price per share paid in respect of the
Shares plus all money and other property, if any, underlying such Depositary
Shares, including all amounts paid by the Company in respect of dividends which
on the Redemption Date have accumulated on the Shares to be so redeemed and have
not therefore been paid.
4
<PAGE>
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
Section 2.4. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
Section 2.5. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS
AND WITHDRAWAL OF SHARES. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
Shares may withdraw such Shares and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole Shares and all money and other
property, if any, represented by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole Shares will not thereafter be entitled to
deposit such Shares hereunder or to receive Depositary Shares therefor. If a
Receipt delivered by the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares in excess of the number
of Depositary Shares representing the number of whole Shares to be so withdrawn,
the Depositary shall at the same time, in addition to such number of whole
Shares and such money and other property, if any, to be so withdrawn, deliver to
such holder, or (subject to Section 2.3) upon such holder's order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Shares and
money and other property, if any, being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate.
If the Shares and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Shares, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such Shares be properly endorsed in
blank or accompanied by a properly executed instrument of transfer in blank
5
<PAGE>
Delivery of the Shares and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.6. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Shares may be suspended, the registration
of transfer of Receipts may be refused and the registration of transfer,
surrender or exchange of outstanding Receipts may be suspended (i) during any
period when the register of shareholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission
or under any provision of this Deposit Agreement.
Section 2.7. LOST RECEIPTS, ETC. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
Section 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, any cancelled receipts held by the Depositary shall be delivered to
the Company or disposed of as directed by the Company.
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the
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Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
Section 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7. Registration of transfer of
any Receipt or any withdrawal of Shares and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or all or any part of the Shares or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
Section 3.3. WARRANTY AS TO SHARES. The Company hereby represents and
warrants that the Shares, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Shares and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
Section 4.1. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any
cash dividend or other cash distribution with respect to Shares, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to Record Holders of Receipts
on the record date fixed pursuant to Section 4.4 such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; PROVIDED, HOWEVER, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution-in respect of the Shares an amount on account of taxes, and the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
Section 4.2. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary shall
receive any distribution other than cash with respect to Shares, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to Record Holders of Receipts
on the record date fixed pursuant to Section 4.4 such amounts of the securities
or property received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders, in any
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manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such Record Holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Sections 3.1 and 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.1 in the case of a distribution
received in cash.
Section 4.3. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Shares are recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Receipts in such manner as the Depositary may determine,
either by the issue to such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale, subject to Sections 3.1 and 3.2, shall be distributed by the Depositary to
the Record Holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of 1933, as amended, of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Receipts to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the Depositary
that it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such a registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
such Act.
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If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.4. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS
OF RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Shares are entitled to vote or of which holders of Shares are entitled to
notice or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Shares) for the determination of holders of Receipts who shall be entitled
hereunder to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or who shall be entitled to
notice of such meeting or for any other appropriate reasons.
Section 4.5. VOTING RIGHTS. Upon receipt of notice of any meeting at which
the holders of Shares are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the Record Holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of Shares underlying their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of Record Holders of
Receipts as of such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of whole Shares underlying the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Shares or cause such Shares to be voted. In the absence of specific
instructions from a Record Holder of a Receipt, the Depositary will abstain from
voting (but, at its discretion, not from appearing at any meeting with respect
to such Shares unless directed to the contrary by the holders of all the
Receipts) to the extent of the Shares representing the Depositary Shares
evidenced by such Receipt.
Section 4.6. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Shares, or upon any
recapitalization, reorganization, merger or consolidation or similar transaction
or the sale of all or substantially all the Company's assets affecting the
Company or to which it is a party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments [as are certified by the Company] in (a) the fraction of an interest
in one Share underlying one Depositary Share and (b) the ratio of the redemption
price per
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Depositary Share to the redemption price of a Share, in each case as may be
necessary fully to reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of Shares, or of such
recapitalization, reorganization, merger, or consolidation or sale and (ii)
treat any securities which shall be received by the Depositary in exchange for
or upon conversion of or in respect of the Shares as new deposited securities so
received in exchange for or upon conversion or in respect of such Shares. In any
such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Section 4.7. INSPECTION OF REPORTS. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
Section 4.8. LISTS OF RECEIPT HOLDERS. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Receipts are registered on the books of the Depositary or
Registrar, as the case may be.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the Record Holders of Receipts;
provided, however, that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby.
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If the Receipts or the Depositary Shares evidenced thereby or the Shares
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, Inc., the Depositary shall, with the approval of the Company, appoint
a Registrar (acceptable to the Company) for registration of such Receipts or
Depositary Shares in accordance with any requirements of such Exchange. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such Exchange) may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company. If the
Receipts, such Depositary Shares or such Shares are listed on one or more other
stock exchanges, the Depositary will, at the request of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Shares
as may be required by law or applicable stock exchange regulation.
Section 5.2. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation (including the
Articles of Amendment) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from, or subjected to any penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the gross negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
Section 5.3. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Shares, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Shares for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The
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Depositary, any Depositary's Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the Shares or for the manner or effect of any such
vote, as long as any such action or nonaction is in good faith. The Depositary
undertakes, and any Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against
the Depositary or any Registrar. The Depositary will indemnify the Company
against any liability which may arise out of acts performed or omitted by the
Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents, any Registrar and the Company may own and
deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar or any of
the securities of the Company and its affiliates.
Section 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect only upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$5,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sum due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Shares and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the Record Holders
of all outstanding Receipts. Any successor Depositary shall promptly mail notice
of its appointment to the Record Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may
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authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
Section 5.5. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will transmit to the Record Holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.8, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the Shares, the Depositary Shares or the
Receipts are listed or by the Company's Restated Articles of Incorporation
(including the Articles of Amendment) to be furnished by the Company to holders
of Shares. Such transmission will be at the Company's expense.
Section 5.6. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Agreement and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Shares pursuant to the provisions hereof.
Section 5.7. CHARGES AND EXPENSES. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Shares and the initial issuance of
the Depositary Shares, and redemption of the Shares at the option of the
Company. All other transfer and other taxes and governmental charges shall be at
the expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
Amendment and Termination
Section 6.1. AMENDMENT. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to
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consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
Section 6.2. TERMINATION. This Agreement may be terminated by the Company
or the Depositary only after (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the Shares in connection with any liquidation,
dissolution or winding up of the Company.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
Section 7.1. COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
Section 7.2. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3. INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4. NOTICES. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at Bank of America Corporate
Center, Charlotte, North Carolina 28255, Attention:____________________, or at
any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
________________________________- , or at any other address of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address
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of such record holder as it appears on the books of the Depositary, or if
such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Receipt, notwithstanding that such telegram or telex
message shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5. DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
Section 7.6. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts from
time to time shall be parties to this Deposit Agreement and shall be bound by
all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.7. GOVERNING LAW. This Deposit Agreement and the receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the state of [New
York].
Section 7.8. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.9. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
Attested by: BANK OF AMERICA CORPORATION
By
- --------------------------------- ---------------------------------------
Secretary Vice President
----------- -----------
15
<PAGE>
[Seal]
Attested-by:
-------------------------------------------
[DEPOSITARY]
By
- ---------------------------------- ----------------------------------------
Secretary Authorized Officer
------------
Title:
------------------------------------
[Seal]
EXHIBIT A
BANK OF AMERICA CORPORATION
(FORM OF FACE OF RECEIPT)
NEITHER THE DEPOSITARY SHARES NOR THE SHARES (EACH AS DEFINED BELOW) ARE
DEPOSITS OF BANK OF AMERICA CORPORATION OR ANY BANKING SUBSIDIARY THEREOF AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY.
[TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready
for Delivery]
NUMBER _____ DEPOSITARY SHARES
CERTIFICATE FOR (NOT MORE THAN) __________ DEPOSITARY SHARES
TDR- ____
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ___ OF
BANK OF AMERICA CORPORATION
[CUSIP __________]
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF DELAWARE CERTAIN DEFINITIONS
_____________________, as Depositary (the "Depositary"), hereby certifies
that ______________ is the registered owner of _________ DEPOSITARY SHARES
("Depository Shares"), each Depositary Share representing [specify fraction]
of one share of Preferred Stock, Series ___, par value _______ (the "Shares"),
of Bank of America Corporation, a Delaware corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to
16
<PAGE>
the benefits of the Deposit Agreement dated as of ________, 19___ (the "Deposit
Agreement"), between the Corporation and the Depositary. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. [The Shares and
Depositary Shares are redeemable on and after _________, 19___, at the option
of the Corporation.] This Depositary Receipt shall not be valid or obligatory
for any purpose or entitled to any benefits under the Deposit Agreement unless
it shall have been executed by the Depositary by the manual signature of a
duly authorized officer or, if executed in facsimile by the Depositary,
countersigned by a Registrar in respect of the Depositary Receipts by the
manual signature of a duly authorized officer thereof.
17
<PAGE>
Dated: Countersigned:
- ------------------- -------------------- --------------------
Depositary Registrar Transfer Agent
By: By: [By: ]
Authorized Officer Authorized Officer Authorized Officer
18
<PAGE>
[FORM OF REVERSE OF RECEIPT]
BANK OF AMERICA CORPORATION
BANK OF AMERICA CORPORATION WILL, UPON REQUEST, FURNISH ANY HOLDER OF A
RECEIPT WITHOUT CHARGE A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE
PORTIONS OF THE CERTIFICATE OF DESIGNATION OR RESOLUTIONS CONTAINING THE
DESIGNATIONS, PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ALL SHARES AND ANY
CLASS OR SERIES THEREOF. [ANY SUCH REQUEST IS TO BE ADDRESSED TO THE TRANSFER
AGENT NAMED ON THE FACE OF THIS RECEIPT.]
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED,
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _______Custodian _______
(Cust) (Minor)
TEN ENT -- as tenants by the Under Uniform Gifts to Minors
entireties Act ______________________
(State)
JT TEN -- as joint tenants with
right of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
- --------------------------------------------------------------------------------
(Please print or typewrite name and address; including postal zip code of
Assignee)
______________________________________________________________ Depositary Shares
represented by the within receipt, and do hereby irrevocably constitute and
appoint ____________________________________________ Attorney to transfer the
said Depositary Shares on the books of the within-named Depositary with
full power of substitution in the premises.
19
<PAGE>
Dated:
------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Receipt in every
particular, without alteration or
enlargement or any change whatever
Signature Guaranteed:
- -------------------------
- -------------------------
20
EXHIBIT 4.15
BANK OF AMERICA CORPORATION
[FORM OF FACE OF RECEIPT]
NEITHER THE DEPOSITARY SHARES NOR THE SHARES (EACH AS DEFINED BELOW) ARE
DEPOSITS OF BANK OF AMERICA CORPORATION OR ANY BANKING SUBSIDIARY THEREOF AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY.
[TEMPORARY RECEIPT -- Exchangeable for Definitive Engraved Receipt When
Ready for Delivery]
NUMBER ___________ DEPOSITARY SHARES
CERTIFICATE FOR [NOT MORE THAN] ______ DEPOSITARY SHARES
TDR--______
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ____ OF
BANK OF AMERICA CORPORATION
[CUSIP __________________]
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR
THE STATE OF DELAWARE CERTAIN DEFINITIONS
______________________, as Depositary (the "Depositary"), hereby certifies that
______________________________ is the registered owner of ________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing [specify
fraction] of one share of Preferred Stock, Series ____, par value _____ (the
"Shares"), of Bank of America Corporation, a Delaware corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of _______, 19___
(the "Deposit Agreement"), between the Corporation and the Depositary. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
[The Shares and Depositary Shares are redeemable on and after ________, 19___,
at the option of the Corporation.] This Depositary Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
[ ]
- ------------------ ------------------ ----------------
Depositary Registrar Transfer Agent
By: By: [By: ]
--------------- --------------- -------------
<PAGE>
Authorized Officer Authorized Officer Authorized Officer
[FORM OF REVERSE OF RECEIPT]
BANK OF AMERICA CORPORATION
BANK OF AMERICA CORPORATION WILL, UPON REQUEST, FURNISH ANY
HOLDER OF A RECEIPT WITHOUT CHARGE A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE PORTIONS OF THE CERTIFICATE OF DESIGNATION OR
RESOLUTIONS CONTAINING THE DESIGNATIONS, PREFERENCES, LIMITATIONS AND
RELATIVE RIGHTS OF ALL SHARES AND ANY CLASS OR SERIES THEREOF. [ANY
SUCH REQUEST IS TO BE ADDRESSED TO THE TRANSFER AGENT NAMED ON THE
FACE OF THIS RECEIPT.]
------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED,
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
------------
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____ Custodian _____
(Cust) (Minor)
TEN ENT -- as tenants by the Under Uniform Gifts to Minors
entireties Act ______________________
(State)
JT TEM -- as joint tenants with
right of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used though not in the above list
For value received, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
- --------------------------------------------------------------------------------
(Please print or typewrite name and address; including postal zip code of
Assignee)
______________________________________________________________ Depositary Shares
represented by the within receipt, and do hereby irrevocably constitute and
appoint ____________
2
<PAGE>
___________________ Attorney to transfer the said Depositary Shares on the books
of the within-named Depositary with full power of substitution in the premises.
3
<PAGE>
Dated:
----------- --------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Receipt in every particular, without
alteration or enlargement or any change whatever
Signature Guaranteed:
- ---------------------------
- ---------------------------
4
Smith Helms Mulliss & Moore, L.L.P
201 North Tryon Street
Charlotte, North Carolina 28202
Tel: (704) 343-2000
Fax: (704) 334-8467
July 22, 1999
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
Re: Registration Statement on Form S-3 filed on July 22, 1999 with respect to
an Aggregate of $15,000,000,000 of Debt Securities, Warrants, Units,
Preferred Stock, Depositary Shares and Common Stock
Ladies and Gentlemen:
We have acted as counsel to Bank of America Corporation (the
"Corporation") in connection with the registration by the Corporation of up
to an aggregate of $15,000,000,000 of its (i) debt securities (the "Debt
Securities"), (ii) warrants (the "Warrants"), (iii) a combination of securities
issued in the form of units (the "Units"), (iv) shares of its preferred stock
(the "Preferred Stock"), which may be represented by depositary shares (the
"Depositary Shares"), and (v) shares of its common stock (the "Common Stock"
and, together with the Debt Securities, Warrants, Units, Preferred Stock and
Depositary Shares, the "Securities"), as set forth in the Registration Statement
on Form S-3 (the "Registration Statement") that is being filed on the date
hereof with the Securities and Exchange Commission by the Corporation pursuant
to the Securities Act of 1933, as amended. This opinion letter is Exhibit 5.1 to
the Registration Statement.
The Securities are to be issued, separately or together, in one or more
series and are to be sold from time to time as set forth in the Registration
Statement, the Prospectuses contained therein (each, a "Prospectus") and any
amendments or supplements thereto.
We have relied upon an officer's certificate as to corporate action
heretofore taken with respect to the Securities.
Based on the foregoing, we are of the opinion that when (1) the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission, (2) the terms of any class or series of such
Securities have been authorized by appropriate corporate action of the
Corporation, and (3) such Securities have been issued and sold upon the terms
and conditions set forth in the Registration Statement, the applicable
Prospectus and the applicable supplement(s) to such Prospectus, then (a) the
Debt Securities, Warrants or Units, as the case may be, will be validly
<PAGE>
Bank of America Corporation
July 22, 1999
Page 2
authorized and issued and binding obligations of the Corporation, and (b) the
shares of the Preferred Stock and Common Stock will be legally issued, fully
paid and non-assessable.
In rendering this opinion, we are not expressing an opinion as to the laws
of any jurisdiction other than the State of North Carolina and the United States
of America and the Delaware General Corporation Law, and we assume no
responsibility as to the applicability of the laws of any other jurisdiction to
the subject matter hereof or to the effects of such laws thereon.
This opinion is rendered to you and for your benefit solely in connection
with the registration of the Securities. This opinion may not be relied on by
you for any other purpose and may not be relied upon by, nor may copies thereof
be provided to, any other person, firm, corporation or entity for any purposes
whatsoever without our prior written consent. We hereby consent to be named in
the Registration Statement and in each of the Prospectuses as attorneys who
passed upon the legality of the Securities and to the filing of a copy of this
opinion as Exhibit 5.1 to the Registration Statement. Unless the prior written
consent of our firm is obtained, this opinion is not to be quoted or otherwise
referred to in any written report, proxy statement or other registration
statement, nor is it to be filed with or furnished to any other governmental
agency or other person, except as otherwise required by law.
Very truly yours,
/s/ SMITH HELMS MULLISS & MOORE, L.L.P.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 15, 1999 relating to the
financial statements, which appears in Bank of America Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
July 22, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Bank of America Corporation,
and the several undersigned Officers and Directors thereof whose signatures
appear below, hereby makes, constitutes and appoints Paul J. Polking and Charles
M. Berger, and each of them acting individually, its, his and her true and
lawful attorneys, with power to act without any other and with full power of
substitution, to execute, deliver and file in its, his and her name and on its,
his and her behalf, and in each of the undersigned Officer's and Director's
capacity or capacities as shown below, (a) a Registration Statement on Form S-3
(or other appropriate form) with respect to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), in connection with
$15,000,000,000 in aggregate initial offering price of Bank of America
Corporation's unsecured debt securities, preferred stock, common stock,
fractional interests in preferred stock represented by depositary shares,
warrants or a combination of other securities in the form of units (hereinafter
collectively referred to as the "Securities"), which Securities may be offered
separately or together, in separate series and in amounts, at prices and on
terms to be determined at the time of sale, all as authorized by the Board of
Directors of Bank of America Corporation as of June 23, 1999, and all documents
in support thereof or supplemental thereto and any and all amendments, including
any and all pre-effective and post-effective amendments, to the foregoing
(hereinafter collectively called the "Registration Statement"); and (b) such
registration statements, petitions, applications, consents to service of process
or other instruments, any and all documents in support thereof or supplemental
thereto, and any and all amendments or supplements to the foregoing, as may be
necessary or advisable to qualify or register the Securities covered by said
Registration Statement under such securities laws, regulations and requirements
as may be applicable; and each of Bank of America Corporation and said Officers
and Directors hereby grants to said attorneys, and to each of them, full power
and authority to do and perform each and every act and thing whatsoever as said
attorneys or attorney may deem necessary or advisable to carry out fully the
intent of this power of attorney to the same extent and with the same effect as
Bank of America Corporation might or could do, and as each of said Officers and
Directors might or could do personally in his or her capacity or capacities as
aforesaid, and each of Bank of America Corporation and said Officers and
Directors hereby ratifies and confirms all acts and things which said attorneys
or attorney might do or cause to be done by virtue of this power of attorney and
its, his or her signature as the same may be signed by said attorneys or
attorney, or any of them, to any or all of the following (and/or any and all
amendments and supplements to any or all thereof): such Registration Statement
under the Securities Act and all such registration statements, petitions,
applications, consents to service of process and other instruments, and any and
all documents in support thereof or supplemental thereto, under such securities
laws, regulations and requirements as may be applicable.
<PAGE>
IN WITNESS WHEREOF, Bank of America Corporation has caused this power of
attorney to be signed on its behalf, and each of the undersigned Officers and
Directors in the capacity or capacities noted has hereunto set his or her hand
as of the date indicated below.
BANK OF AMERICA CORPORATION
By: /s/ Hugh L. McColl, Jr.
-------------------------------------
(Hugh L. McColl, Jr.)
Chairman and Chief Executive Officer
Dated: June 23, 1999
Signature Title Date
- --------- ----- ----
/s/ Hugh L. McColl, Jr. Chairman of the Board, June 23, 1999
- ------------------------- Chief Executive Officer and
(Hugh L. McColl, Jr.) Director (Principal
Executive Officer)
/s/ James H. Hance, Jr. Vice Chairman and Chief June 23, 1999
- ------------------------- Financial Officer
(James H. Hance, Jr.) (Principal Financial
Officer)
/s/ Marc D. Oken Executive Vice President June 23, 1999
- ------------------------- and Principal Financial
(Marc D. Oken) Executive (Principal
Accounting Officer)
/s/ Charles W. Coker Director June 23, 1999
- -------------------------
(Charles W. Coker)
- ------------------------- Director June 23, 1999
(Timm F. Crull)
/s/ Alan T. Dickson Director June 23, 1999
- -------------------------
(Alan T. Dickson)
/s/ Kathleen F. Feldstein Director June 23, 1999
- -------------------------
(Kathleen F. Feldstein)
2
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Paul Fulton Director June 23, 1999
- -------------------------
(Paul Fulton)
/s/ Donald E. Guinn Director June 23, 1999
- -------------------------
(Donald E. Guinn)
/s/ C. Ray Holman Director June 23, 1999
- -------------------------
(C. Ray Holman)
/s/ W.W. Johnson Director June 23, 1999
- -------------------------
(W.W. Johnson)
- ------------------------- Director June 23, 1999
(Walter E. Massey)
/s/ Richard M. Rosenberg Director June 23, 1999
- -------------------------
(Richard M. Rosenberg)
/s/ O. Temple Sloan, Jr. Director June 23, 1999
- -------------------------
(O. Temple Sloan, Jr.)
/s/ Meredith R. Spangler Director June 23, 1999
- -------------------------
(Meredith R. Spangler)
- ------------------------- Director June 23, 1999
(A. Michael Spence)
/s/ Ronald Townsend Director June 23, 1999
- -------------------------
(Ronald Townsend)
/s/ Solomon D. Trujillo Director June 23, 1999
- -------------------------
(Solomon D. Trujillo)
/s/ Jackie M. Ward Director June 23, 1999
- -------------------------
(Jackie M. Ward)
3
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Virgil R. Williams Director June 23, 1999
- -------------------------
(Virgil R. Williams)
/s/ Shirley Young Director June 23, 1999
- -------------------------
(Shirley Young)
4
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
BANK OF AMERICA CORPORATION
June 23, 1999
Authorization and Registration of Debt and Other Securities
-----------------------------------------------------------
and Appointment of Committee
----------------------------
RESOLVED FURTHER, that Paul J. Polking and Charles M. Berger hereby are
appointed attorneys-in-fact for, and each of them with full power to act without
the other hereby is authorized and empowered to sign the Registration Statement
and any amendment or amendments (including any pre-effective or post-effective
amendments) thereto on behalf of, the Corporation and any of the following, to
wit: the Principal Executive Officer, the Principal Financial Officer, the
Principal Accounting Officer, and any other officer of the Corporation;
RESOLVED FURTHER, that Paul J. Polking is hereby designated as Agent for
Service of the Corporation with all such powers as are provided by the Rules and
Regulations of the Commission;
RESOLVED FURTHER, that the officers of the Corporation hereby are
authorized and directed to do all things necessary, appropriate or convenient to
carry into effect the foregoing resolutions.
<PAGE>
CERTIFICATE OF SECRETARY
I, Allison Gilliam, Assistant Secretary of Bank of America Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), do hereby certify that the foregoing is a true and
correct copy of the resolutions duly adopted by the Board of Directors of the
Corporation at a meeting of the Board of Directors held on June 23, 1999, at
which meeting a quorum was present and acting throughout and that said
resolutions are in full force and effect and have not been amended or rescinded
as of the date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed the seal of
the Corporation as of this 22nd day of July, 1999.
/s/ Allison Gilliam
---------------------------
Assistant Secretary
(CORPORATE SEAL)
2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
For information, contact:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
Bank of America Corporation
(Exact name of obligor as specified in its charter)
Delaware 56-0906609
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Bank of America Corporate Center
Charlotte, North Carolina 28202
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to Exhibit 1 of
Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for First Trust
of New York, National Association now known as U.S. Bank Trust
National Association, incorporated herein by reference to
Exhibit 2 of Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization to exercise corporate trust powers for U.S. Bank
Trust National Association, incorporated herein by reference
to Exhibit 3 of Form T-1, Registration No. 333-51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 4 of Form T-1, Registration No.
333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association now
known as U.S. Bank Trust National Association, required by
Section 321(b) of the Act, incorporated herein by reference to
Exhibit 6 of Form T-1, Registration No. 33-83774.
<PAGE>
Exhibit 7. Report of Condition of U.S. Bank Trust National Association,
as of the close of business on March 31, 1999, published
pursuant to law or the requirements of its supervising or
examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 22nd day of July, 1999.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ [Patrick J. Crowley]
---------------------------
[Patrick J. Crowley]
Vice President
<PAGE>
Exhibit 7
----------
U.S. Bank Trust National Association
Statement of Financial Condition
As of 3/31/99
($000's)
3/31/99
Assets
Cash and Due From Depository Institutions $44,844
Federal Reserve Stock 3,378
Fixed Assets 481
Intangible Assets 66,457
Other Assets 6,336
Total Assets $121,496
Liabilities
Other Liabilities $9,247
Total Liabilities $9,247
Equity
Common and Preferred Stock $1,000
Surplus 120,932
Undivided Profits (9,683)
Total Equity Capital $112,249
Total Liabilities and Equity Capital $121,496
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By:\s\ [Patrick J. Crowley]
-------------------------
Vice President
Date: July 22, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) |___|
------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
13-5160382
(I.R.S. employer identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
-------------------
The Bank of New York
10161 Centurion Parkway
Highwoods Center, 2nd Floor
Jacksonville, Florida 32256
Attn: Ms. Sandra Carreker
(904) 998-4700
(Name, address and telephone number of agent for service)
--------------------
BANK OF AMERICA CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 56-0906609
State or other jurisdiction of (IRS employer
incorporation or organization identification no.)
Bank of America Corporate Center, Charlotte, North Carolina 28255
(704) 386-5000
(Address and telephone number of principal executive offices)
--------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee--
Name and address of each examining or supervising authority to which it
is subject.
Superintendent of Banks of the State of New York
2 Rector Street
New York, N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York
33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation
Washington, D.C. 20429
New York Clearing House Association
New York, N.Y.
Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 4.)
3-15 Not Applicable
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
(1) A copy of the Organization Certificate of the Bank of New York
(formerly Irving Trust Company) as now in effect,
<PAGE>
which contains the authority to commence business and a grant of powers
to exercise corporate trust powers. (Exhibit 1 to Amendment 1 to Form
T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b
to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
(4) A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
(6) The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration No. 33-44051.)
(7) A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee of
all facts on which to base a responsive answer to Item 2, the answer to said
Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment to
this Form T-1.
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, in connection with the proposed issuance of Bank of America
Corporation Debt Securities, The Bank of New York hereby consents that reports
of examinations by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
THE BANK OF NEW YORK
By: /S/ Sandra Carreker
----------------------------
Sandra Carreker, Agent
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of Jacksonville
and the State of Florida, on the 22nd day of July, 1999.
THE BANK OF NEW YORK
By: /S/ Sandra Carreker
----------------------------
Sandra Carreker, Agent
<PAGE>
EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
- ------
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin ............................................. $ 4,508,742
Interest-bearing balances ........................................... 4,425,071
Securities:
Held-to-maturity securities ......................................... 836,304
Available-for-sale securities ....................................... 4,047,851
Federal funds sold and securities
purchased under agreements to resell ................................ 1,743,269
Loans and lease financing receivables:
Loans and leases,
net of unearned income .......................... 39,349,679
LESS: Allowance for loan and
lease losses .................................... 603,025
LESS: Allocated transfer
risk reserve .................................... 15,906
Loans and leases, net of unearned
income and allowance and reserve .................................. 38,730,748
Assets held in trading accounts .............................................. 1,571,372
Premises and fixed assets (including
capitalized leases) ................................................. 685,674
Other real estate owned ...................................................... 10,331
Investments in unconsolidated
subsidiaries and associated
companies ........................................................... 182,449
Customers' liability to this bank
on acceptances outstanding .......................................... 1,184,822
Intangible assets ............................................................ 1,129,636
Other assets ................................................................. 2,632,309
-----------
Total assets ................................................................. $61,688,578
===========
LIABILITIES
- -----------
Deposits:
In domestic offices ................................................. $25,731,036
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Noninterest-bearing ............................... 10,252,589
Interest-bearing .................................. 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................. 18,756,302
Noninterest-bearing ............................... 111,386
Interest-bearing .................................. 18,644,916
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased ............................................. 3,276,362
Demand notes issued to the
U.S. Treasury ....................................................... 230,671
Trading liabilities .......................................................... 1,554,493
Other borrowed money:
With remaining maturity of one year
or less ........................................................... 1,154,502
With remaining maturity of more
than one year through three years ................................. 465
With remaining maturity of more
than three years .................................................. 31,080
Bank's liability on acceptances
executed and outstanding .......................................... 1,185,364
Subordinated notes and debentures ............................................ 1,308,000
Other liabilities ............................................................ 2,743,590
-----------
Total liabilities ............................................................ 55,971,865
===========
EQUITY CAPITAL
- --------------
Common stock ................................................................. 1,135,284
Surplus ...................................................................... 764,443
Undivided profits and capital
reserves ............................................................ 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities .................................... 44,106
Cumulative foreign currency
translation adjustments ............................................. ( 34,817)
-----------
Total equity capital ......................................................... 5,716,713
-----------
Total liabilities and equity capital ......................................... $61,688,578
===========
</TABLE>
I, Thomas J. Masiro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Masiro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by
<PAGE>
us and to the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal Reserve
System and is true and correct.
Thomas A. Renyi )
Gerald L. Hassell ) Directors
Allen R. Griffith )
ss 145. Indemnification of officers, directors, employees and agents; insurance.
(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to
<PAGE>
a person who is a director or officer at the time of such determination, (1) by
a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
2
<PAGE>
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees). (Last amended by Ch. 120, L. '97, eff. 7-1-97.)
3
