EXHIBIT 1.1
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT (6 5/8% SENIOR NOTES, DUE 2004)
New York, New York
June 9, 1999
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 January 1, 1995 between the Company and U.S. Bank
Trust, National Association (successor to BankAmerica National Trust Company),
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 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:
(i) 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.
(ii) (A) it has not offered or sold and will not offer or sell any
Securities to persons in the
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United Kingdom prior to the expiration of six months from the Closing Date (as
defined herein), except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (whether as principal
or agent) for the purpose of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulation
1995, (B) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Securities in, from or otherwise involving the United Kingdom, and (C) it
has only issued or passed on, and will only issue or pass on, in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom such document may otherwise lawfully be
issued or passed on.
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, 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
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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:
(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
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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.
(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.
(g) The Company will use its best efforts to effect the
listing of the Securities on the Luxembourg Stock Exchange.
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
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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; NationsBank, National Association and Bank of
America, National Trust and Savings Association (or the successors to
such entities) (collectively, the "Principal Subsidiary Banks") are
national banking associations formed under the laws of the United
States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Banks is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
such Principal Subsidiary Bank, as the case may be, is required to be
so qualified or licensed;
(iii) all the outstanding shares of capital stock of each
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 Banks (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) the Company has filed a preliminary listing application
and supporting documents with respect to the Securities with the
Luxembourg Stock Exchange and such counsel has received no information
stating that the Securities will not be authorized for listing;
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(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 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
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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 articles 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 any of the
Principal Subsidiary Banks is a party or bound, or (2) any order or
regulation known to such counsel to be applicable to the Company or any
of the Principal Subsidiary Banks of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates; 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
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application of laws of any jurisdiction other than the State of
Delaware, the State of North Carolina or the United States, 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 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
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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 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;
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(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
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
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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,
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
12
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 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
13
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
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
14
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 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 100
North Tryon Street, Charlotte, North Carolina 28255, attention of the Secretary,
with a copy to each of: Bank of America Corporation, 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.
[remainder of this page is intentionally blank]
15
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: /s/ John E. Mack
-------------------------------
Name: John E. Mack
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Michael Wheeler
------------------------
Name: Michael Wheeler
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated June 9, 1999
Registration Statement No. 333-51367
Representatives: Banc of America Securities LLC
ABN AMRO Incorporated
Bear, Stearns & Co. Inc.
Deutsche Bank AG London
Lehman Brothers Inc.
Merrill Lynch & Co.
Salomon Smith Barney Inc.
Blaylock & Partners, L.P.
Utendahl Capital Partners, L.P.
The Williams Capital Group, L.P.
Address of Representatives: c/o Banc of America Securities LLC
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Attention: Michael Wheeler, Managing Director
Title, Purchase Price and Description of Securities:
Title: 6 5/8% Senior Notes, due 2004
Principal amount: $1,500,000,000
Purchase price (include type of funds and accrued interest or
amortization, if applicable): 99.449%; 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: none
Redemption provisions: none
Other provisions: none
Closing Date, Time and Location: June 15, 1999, 9:00 a.m. New York City time,
office of Stroock & Stroock & Lavan LLP
17
Listing: Application to the Luxembourg Stock Exchange
Delayed Delivery Arrangements: none
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: none
18
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------- ----------------
Banc of America Securities LLC.........................$1,005,000,000
ABN AMRO Incorporated.................................. 75,000,000
Bear, Stearns & Co. Inc. .............................. 75,000,000
Deutsche Bank AG London................................ 75,000,000
Lehman Brothers Inc. .................................. 75,000,000
Merrill Lynch & Co..................................... 75,000,000
Salomon Smith Barney Inc............................... 75,000,000
Blaylock & Partners, L.P............................... 15,000,000
Utendahl Capital Partners, L.P......................... 15,000,000
The Williams Capital Group, L.P........................ 15,000,000
---------------
TOTAL...........................................$1,500,000,000
---------------
19
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[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.
20
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)
21