SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
August 23, 2004
BANK OF AMERICA CORPORATION
(Exact name of registrant as specified in its charter)
(State of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
100 North Tryon Street
Charlotte, North Carolina 28255
(Address of principal executive offices)
(800) 299-2265
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
-------------------------------------------------------------
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 8.01. OTHER EVENTS
.
(a) 4¼% Senior Notes, due October
2010
By action dated
August 23, 2004, a Committee previously appointed by the Board of Directors
of the Registrant (the "Committee"), approved the public offering of an
aggregate principal amount of $750,000,000 of the Registrant's 4¼%
Senior Notes, due October 2010 (the "Notes"), to various underwriters (the
"Underwriters") and otherwise established the terms and conditions of the
Notes and the sale thereof. The resolutions of the Committee with respect
to the Notes are included as a part of Exhibit 99.1 hereto.
On August 23, 2004,
the Registrant entered into an underwriting agreement with the various
Underwriters (the "Underwriting Agreement") for the Notes. The terms of
the offering and the Notes are described in the Registrant's Prospectus
dated April 14, 2004 constituting a part of the Registration Statement
(hereinafter described), as supplemented by a final Global Prospectus Supplement
dated August 23, 2004. The Underwriting Agreement is included as Exhibit
1.1 hereto.
The Notes were issued
on August 23, 2004 pursuant to the Registrant's Registration Statement
on Form S-3, Registration No. 333-112708, as amended ("Registration No.
333-112708"), on a delayed basis pursuant to Rule 415 under the Securities
Act of 1933, as amended. Registration No. 333-112708 registered up to $30,000,000,000
aggregate initial offering price of the Registrant's unsecured debt securities
(either senior or subordinated), warrants, units and shares of its preferred
stock, including depositary shares, and common stock.
(b) Third Supplemental Indenture
Effective July 28,
2004, the Committee approved and authorized the execution and delivery
of a Third Supplemental Indenture amending and supplementing the Senior
Securities Indenture dated as of January 1, 1995 between the Registrant
and The Bank of New York, as trustee. The Third Supplemental Indenture
is included as Exhibit 4.2 hereto.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
BANK OF AMERICA CORPORATION
By: /s/ TERESA M. BRENNER
Dated: August 27, 2004
Underwriting Agreement dated August 23, 2004
with respect to the offering of the 4¼% Senior Notes, due October
2010
Form of 4¼% Senior Note, due October
2010
Third Supplemental Indenture dated July 28,
2004 between Registrant and The Bank of New York, as trustee
Form of Opinion of Helms Mulliss & Wicker,
PLLC, regarding legality of the 4¼% Senior Notes, due October 2010
Resolutions dated August 23, 2004 of a Committee
appointed by the Board of Directors with respect to the terms of the offering
of the 4¼% Senior Notes, due October 2010
News Release disseminated on August 23, 2004
regarding the sale of the 4¼% Senior Notes, due October 2010
TERESA M. BRENNER
Associate General Counsel
Underwriting Agreement dated August 23, 2004
with respect to the offering of the 4¼% Senior Notes, due October
2010
Form of 4¼% Senior Note, due October
2010
Third Supplemental Indenture dated July 28,
2004 between Registrant and The Bank of New York, as trustee
Form of Opinion of Helms Mulliss & Wicker,
PLLC, regarding legality of the 4¼% Senior Notes, due October 2010
Resolutions dated August 23, 2004 of a Committee
appointed by the Board of Directors with respect to the terms of the offering
of the 4¼% Senior Notes, due October 2010
News Release disseminated on August 23, 2004
regarding the sale of the 4¼% Senior Notes, due October 2010
UNDERWRITING AGREEMENT (4 ¼% Senior Notes, due October 2010)
New York, New York
August 23, 2004
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
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"). The Securities will be issued under an indenture dated as of January 1, 1995 between the Company and The Bank of New York, as trustee (the "Trustee"), as supplemented by the First Supplemental Indenture dated as of September 18, 1998, the Second Supplemental Indenture dated as of May 7, 2001, and the Third Supplemental Indenture dated as of July 28, 2004 (as so supplemented, the "Indenture"). The Securities are described more fully 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 .
(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(b) 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, including the final prospectus,
in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) or Rule 434 (including the Basic Prospectus as so supplemented) is hereinafter called the "Final Prospectus." Any reference herein to the Registration Statement, the Basic 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, 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, 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, or the Final Prospectus, as the case may be, and deemed to be incorporated therein by reference. The Final Prospectus, if filed by electronic transmission pursuant to the Commission's Electronic Data Gathering, Analysis and Retrieval System ("EDGAR") (except as may be permitted by Regulation S-T under the Act), was identical to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Securities.
(ii) As of the date hereof, when the Final Prospectus
is first filed with the Commission pursuant to Rule 424(b) or Rule 434
under the Act, when any supplement or amendment to the Final Prospectus
is filed with the Commission, at the Closing Date (as hereinafter defined)
and, with respect to (i) and (ii) below, when the Registration Statement
became effective, (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 provisions of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Exchange Act and the respective
rules and regulations of the Commission 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 any Final Prospectus. If
Rule 434 is used, the Company will comply with the requirements of Rule
434 applicable to it. The documents which are incorporated by reference
in the Final Prospectus or from which information is so incorporated by
reference, when they were filed with the Commission, complied in all material
respects with the requirements of the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder, as applicable, and
did not, when such documents were so filed, contain any untrue statement
of a material fact or omit to state a 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, and any
documents so filed and incorporated by reference subsequent to the effective
date of the Registration Statement, when
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they were filed with the Commission, conformed in all material respects with the requirements of the Act, the Exchange Act and the respective rules and regulations of the Commission thereunder, as applicable. The Commission has not issued any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Final Prospectus and the Company is without knowledge that any proceedings have been instituted for either purpose.
(b) Each Underwriter, severally and not jointly, 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; and
(ii) it will comply with the selling restrictions set forth on Schedule III attached hereto.
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.
3. Delivery and Payment . Delivery of and payment for the 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 hereto (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the 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 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 for 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 to the Registration
Statement or supplement to the Basic Prospectus (including the Final 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 EDGAR. 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
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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 and regulations 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 or supplement 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 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 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 in 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
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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 (including, without limitation, the Company's InterNotes program) 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 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 furnished 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 with the Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the opinion of Helms Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (iv) through (xii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, 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; each of Bank of America, N.A. and Fleet National Bank ("Principal Subsidiary Banks") 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 each of 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 each of the Principal Subsidiary Banks, as the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock
of each of the Principal Subsidiary Banks have been duly and validly authorized
and issued and are fully paid and (except as provided in 12 U.S.C. §
55, as amended) nonassessable, and, except as otherwise set forth in the
Final Prospectus, all outstanding shares of capital stock of each 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 such counsel is without knowledge of any other security
interests, claims, liens or encumbrances;
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(iv) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the Luxembourg Stock Exchange, the Company has caused a listing application with respect to the Securities to be filed with the Luxembourg Stock Exchange and such counsel has received no information stating that the Securities will not be authorized for listing;
(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 of the Company enforceable against the Company in accordance with its terms, subject 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. §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, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject 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. §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 or the Final Prospectus which is omitted or not adequately disclosed therein, 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; no stop order suspending the effectiveness of the Registration Statement has been issued, and such counsel is without knowledge that any proceeding for that purpose has 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, the Exchange Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder;
(ix) this Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy,
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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. §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 in the United States is necessary or required on behalf of the Company for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky, securities or insurance or similar laws of the United States 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 issuance and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws of the Company, each as amended to date, or (1) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or any Principal Subsidiary Bank is a party or bound, or (2) any order, law or regulation known to such counsel to be applicable to the Company or any Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any Principal Subsidiary Bank; and
(xii) such counsel is without knowledge of any 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 also shall state
that, although it expresses no view as to portions of the Registration
Statement consisting of financial statements and other financial, accounting
and statistical information and 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 or
Final Prospectus or any amendment or supplement thereto (other than as
stated in (iv) above), it has no reason to believe that such remaining
portions of the Registration Statement or any amendment thereto at the
time it became effective and as of the date of such opinion contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, subject to the foregoing with respect to financial
statements and other financial, accounting and statistical information,
the Final Prospectus, as amended or supplemented, as of its date and as
of the date of such opinion contained or contains any untrue statement
of a material fact or omitted or omits to state 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.
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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, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or 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 Morrison & Foerster 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, the Registration Statement, the Final Prospectus and any 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, 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 they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been any material adverse change or any development involving a prospective 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:
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(i) They are an independent registered public accounting firm with respect to the Company under Rule 101 of the Code of Professional Conduct of the Public Company Accounting Oversight Board (United States), and the applicable interpretations and rulings.
(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 rules and regulations of the Commission 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 stockholders, the board of directors, executive committee and audit committee of the Company and Bank of America, N.A. 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;(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.(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100 and 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 common stock or the consolidated long-term debt (other than scheduled repayments of such debt) 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
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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 common stock or the consolidated long-term debt (other than scheduled repayments of such debt) 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.
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 condition (financial or other), 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) On or after the date hereof and prior to the Closing Date (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
(i) There shall not have come to the Representatives'
attention any facts that would cause the Representatives to believe that
the Final Prospectus, at the time it was required to be delivered to a
purchaser of the Securities, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
of such delivery, not misleading.
10
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 or supplement thereto, (ii) the copying of this Agreement, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including capital duties, stamp duties and 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 any transfer agent or trustee for the Securities, (iv) the fees and expenses of counsel to any such transfer agent or trustee, (v) the fees and disbursements of the Company's counsel and accountants, (vi) 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 any Blue Sky Survey, (vii) the printing and delivery to the Underwriters of copies of the Registration Statement as originally filed and of each amendment thereto and of the Final Prospectus and any amendments or supplements thereto, (viii) the printing and delivery to the Underwriters of copies of any Blue Sky Survey, and (ix) the fees of the National Association of Securities Dealers, Inc., (x) the preparation, printing, reproduction and delivery to the Underwriters of copies of the Indentures and all supplements and amendments thereto, (xi) any fees charged by rating agencies for the rating of the Securities, (xii) the fees and expenses of any depository and any nominee thereof in connection with the Securities, and (xiii) if applicable, the fees of the Luxembourg 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. 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 any
omission or
11
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 Final 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 inclusion in the Registration Statement or Final Prospectus or any amendment or supplement thereof, or arises out of or is based upon statements in or omissions from that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification of the Trustee (Form T-1) under the Trust Indenture Act of the Trustee, and (ii) such indemnity with respect to the Basic Prospectus or the 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 inclusion in the Registration Statement or Final Prospectus or any amendment or supplement thereof. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the names of the Underwriters and the statements required by Item 508 of Regulation S-K set forth on the cover page or under the heading "Underwriting" in the Final Prospectus, and (ii) the sentences relating to concessions and reallowances and the paragraph related to stabilization and syndicate covering transactions, under the heading "Underwriting" in the Final Prospectus, constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Registration Statement or Final Prospectus or any amendment or supplement thereto.
(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
12
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 (in addition to local 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
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 non-defaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any non-defaulting 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 non-defaulting 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, or (ii) a banking moratorium shall have been declared by Federal or New York State authorities or a material disruption in the commercial banking or securities settlement or clearance services in the United States shall have occurred, or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis (in the United States or elsewhere) 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
14
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: Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, New York 10105-0050, 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, Attn: 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: General Counsel; and Helms Mulliss & Wicker, PLLC, 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
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/ KAREN A. GOSNELL
Name: Karen A. Gosnell
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/ LILY CHANG |
Name: Lily Chang
Title: Principal
SCHEDULE I
Underwriting Agreement dated August 23, 2004
Registration Statement No. 333-112708
Representatives: | Banc of America Securities LLC |
Bear, Stearns & Co. Inc. | |
Barclays Capital Inc. | |
Blaylock & Partners, L.P. | |
Goldman, Sachs & Co. | |
Guzman & Company | |
Muriel Seibert & Co., Inc. | |
Samuel A. Ramirez & Co., Inc. | |
The Williams Capital Group, L.P. |
Address of Representatives: c/o Banc of America Securities LLC
Title, Purchase Price and Description of Securities:
Principal amount: $750,000,000
Purchase price (include type of funds and accrued interest or amortization,
if applicable): 99.128% ($743,460,000); 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: Except in those situations in which the Company
may become obligated to pay additional amounts (as described in the Final
Prospectus), the Securities of this series are not subject to redemption
at the option of the Company or repayment at the option of the holder prior
to maturity.
Other provisions: none
Listing: Application will be made to list the Securities on the Luxembourg
Stock Exchange
Additional items to be covered by the letter from
SCHEDULE II
Underwriters
SCHEDULE III
Jurisdictional Selling Restrictions:
United Kingdom
Each Underwriter severally
represents and agrees that (i) it has not offered or sold and will not
offer or sell any Securities to persons in the United Kingdom prior to
the expiration of the period six months from the Closing Date, 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 (as amended),
(ii) it will only communicate or cause to be communicated any invitation
or inducement to engage in investment activity (within the meaning of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of the Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Company, and (iii)
it has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Securities in, from
or otherwise involving the United Kingdom.
The Netherlands
In respect of the Securities,
each Underwriter represents and agrees:
(a) that it has not, directly or indirectly,
offered, sold, or transferred and will not, directly or indirectly, offer,
sell, or transfer in The Netherlands any Securities (including rights representing
an interest in any global note) other than to professional market parties
as defined in Section 1(e) of the Dutch Exemption Regulation pursuant to
the Act on the Supervision of the Credit System (
Vrijstellingsregeling
Wet toezicht kredietwezen 1992
) (which includes, among others, (1)
banks, insurance companies, securities firms, pension funds, and investment
institutions duly registered with the applicable Dutch supervisory authority;
(2) the State of The Netherlands, the Dutch Central Bank, international
treaty organizations, or supranational public institutions; (3) enterprises
and institutions with consolidated total assets of at least EUR 500,000,000
as at the end of the preceding calendar year; (4) enterprises, institutions
or natural persons (A) with net own funds (total equity) of at least EUR
10,000,000 as at the end of the preceding calendar year, and (B) which
have been active on the financial markets at least twice a month on average
during the last two years; and (5) enterprises with a rating (or which
have issued securities having a rating) from Moody's, Standard & Poor's,
Fitch or another rating agency accepted by the Dutch Central Bank); and
(b) it will have sent to each person
to which it sells any Securities in The Netherlands (including rights representing
an interest in any global note) a confirmation or other notice setting
forth the above restrictions and stating that by purchasing any of the
Securities, each purchaser represents and agrees that it will send to any
other person to whom it sells any of the Securities a notice containing
substantially the same statement as is contained in this sentence.
United States
Each Underwriter
severally represents and agrees that it will not offer or sell the Securities
in the United States or to United States persons except if such offers
or sales are made by or through broker-dealers registered with the U.S.
Securities and Exchange Commission.
Italy
The offering of the
Securities has not been registered pursuant to the Italian securities legislation
and, accordingly, each of the Underwriters represents and agrees that it
has not offered or sold, and will not offer or sell, any Securities in
the Republic of Italy in a solicitation to the public, and that sales of
the Securities in the Republic of Italy shall be effected in accordance
with all Italian securities, tax, exchange control and other applicable
laws and regulations.
Each of the Underwriters
represents that it will not offer, sell or deliver any Securities or distribute
copies of the Final Prospectus or any other document relating to the Securities
in the Republic of Italy except to "
Professional investors
", as
defined in Article 31.2 of CONSOB Regulation No. 11522 of 1
st
July 1998 ("
Regulation No. 11522
"), as amended, pursuant to Articles
30.2 and 100 of Legislative Decree No. 58 of 24
th
February 1998
("
Decree No. 58
"), or in any other circumstances where an express
exemption from compliance with the solicitation restrictions provided by
Decree No. 58 or CONSOB Regulation No. 11971 of 14
th
May 1999
applies, provided however, that any such offer, sale or delivery of Securities
or distribution of copies of the Final Prospectus or any other document
relating to the Securities in the Republic of Italy must be:
(a)
made by investment firms, banks or financial intermediaries permitted to
conduct such activities in the Republic of Italy in accordance with Legislative
Decree No. 385 of 1
st
September 1993 ("
Decree No. 385
"),
Decree No. 58, Regulation No. 11522 and any other applicable laws and regulations;
(b)
in compliance with Article 129 of Decree No. 385 and the implementing instructions
of the Bank of Italy, pursuant to which the issue or placement of securities
in Italy is subject to prior notification to the Bank of Italy, unless
an exemption, depending
inter alia,
on the amount of the issue and
the characteristics of the securities, applies; and
(c)
in compliance with any other applicable notification requirement or limitation
which may be imposed by CONSOB or the Bank of Italy.
Other Selling Restrictions:
Each Underwriter
severally represents and agrees that it has not and will not offer or sell
any Securities to any person whose assets are the assets of an "employee
benefit plan" subject to the fiduciary responsibility provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
a "plan" subject to Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), any person or an entity whose underlying
assets include "plan assets" by reason of Department of Labor regulation
section 2510.3-101 or otherwise, or a governmental plan that is subject
to any federal, state or local law that is substantially similar to the
provisions of Section 406 of ERISA or Section 4975 of the Code, unless
the purchase,
holding and disposition of the Securities will not result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
in the case of a governmental plan, any federal, state or local provision
that is substantially similar to Section 406 of ERISA or Section 4975 of
the Code) under an exemption for transactions effected on behalf of that
plan by a "qualified professional asset manager," or an "in house asset
manager," or for transactions involving insurance company general accounts,
for transactions involving insurance company pooled separate accounts,
for transactions involving bank collective trusts or under another available
exemption.
9 West 57
th
Street
NYL-301-2M-01
New York, NY 10019
Attention: Ileana Chu, Principal
Title: 4 ¼% Senior Notes, due October 2010
Closing Date, Time and Location: August 26, 2004, 9:00 A.M. New
York City time, Office of Morrison & Foerster LLP
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: none
of Securities to
be Purchased
Banc of America Securities LLC
$ 720,000,000
Bear, Stearns & Co. Inc.
3,750,000
Barclays Capital Inc.
3,750,000
Blaylock & Partners, L.P.
3,750,000
Goldman, Sachs & Co.
3,750,000
Guzman & Company
3,750,000
Muriel Seibert & Co., Inc.
3,750,000
Samuel A. Ramirez & Co., Inc.
3,750,000
The Williams Capital Group, L.P.
3,750,000
TOTAL
$ 750,000,000
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street,
New York, New York) ("DTC"), to the Corporation or its agent for registration
of transfer, exchange or payment, and this Note is registered in the name
of Cede & Co. or such other name as requested by an authorized representative
of DTC, and unless any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
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
$500,000,000
NUMBER R-1
CUSIP: 060505 BP 8
ISIN: US060505BP87
Common Code: 019987442
BANK OF AMERICA CORPORATION
4¼% SENIOR NOTE, DUE OCTOBER 2010
BANK OF AMERICA CORPORATION, a Delaware corporation (herein called the "Corporation," which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to CEDE & CO. or its registered assigns, the principal sum of FIVE HUNDRED MILLION AND NO/100THS DOLLARS ($500,000,000) on October 1, 2010 (except to the extent redeemed or repaid prior to the Maturity Date (as defined below)). The Corporation will pay interest on such principal sum at the rate of 4¼% per annum, until payment of such principal sum has been made or duly provided for, semi-annually in arrears on April 1 and October 1 of each year (each, an "Interest Payment Date"). Interest shall be payable commencing on the first Interest Payment Date succeeding the original issue date of this Note, unless the original issue date occurs between a Regular Record Date (as defined below) and the next Interest Payment Date, in which case interest shall be payable commencing on the Interest Payment Date following the next Regular Record Date, and shall be payable on each Interest Payment Date, and at Maturity (the "Maturity Date"). The original issue date of this Note is August 26, 2004, and a Regular Record Date shall be the close of business on the fifteenth day of the calendar month next preceding an Interest Payment Date. If the Corporation shall default in the payment of interest due on any 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 August 26, 2004.
Interest on this Note will
accrue from the original issue date of this Note until the principal amount
is paid or duly provided for. Interest (including payments for partial
periods)
will be computed on the basis of a 360-day year of twelve 30-day months. Interest payments will equal the amount of interest accrued from, and including, the preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from, and including, the original issue date of this Note, if no interest has been paid or duly provided for) to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be. If the Maturity Date or an Interest Payment Date falls on a day which is not a Business Day, as defined below, principal of or interest payable with respect to such Maturity Date or Interest Payment Date will be paid on the succeeding Business Day with the same force and effect as if made on such Maturity Date or Interest Payment Date, as the case may be, and no additional interest shall accrue for the period from and after such Maturity Date or Interest Payment Date, as the case may be. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the person in whose name this Note (or one or more predecessor Notes evidencing all or a portion of the same debt as this Note) is registered at the close of business on the record date for such Interest Payment Date.
The principal of and interest on this Note are payable in immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Corporation designated in the Indenture. However, 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. Any interest not punctually paid or duly provided for shall be payable as provided in such Indenture. "Business Day" means any weekday that is not a legal holiday in New York, New York, Charlotte, North Carolina, Luxembourg or any other place of payment with respect to this Note and that is not a day on which banking institutions in those cities are authorized or required by law or regulation to be closed.
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.
2
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly executed, by manual or facsimile signature, under its corporate seal or a facsimile thereof.
BANK OF AMERICA CORPORATION
By: _______________________________
[SEAL]
Title: Senior Vice President
ATTEST:
By:______________________
Assistant Secretary
3
Certificate of Authentication
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: August 26, 2004
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Authorized Signatory
4
[Reverse of Note]
BANK OF AMERICA CORPORATION
4¼% SENIOR NOTE, DUE OCTOBER 2010
SECTION 1. General . This 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 January 1, 1995 (herein called the "Indenture"), between the Corporation (successor in interest to NationsBank Corporation) and The Bank of New York, as Trustee (successor in interest to U.S. Bank Trust National Association, 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 September 18, 1998, a Second Supplemental Indenture dated May 7, 2001 and a Third Supplemental Indenture dated July 28, 2004, 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. The series of which this Note is a part also is designated as the Corporation's 4¼% Senior Notes, due October 2010 (herein called the "Notes"), initially in the principal amount of $750,000,000. The amount of Notes of this series may be increased by the Corporation in the future. The Trustee initially shall act as Security Registrar, Transfer Agent, and Issuing and Paying Agent in connection with the Notes.
SECTION 2. No Sinking Fund . This Note is not subject to any sinking fund.
SECTION 3. Redemption and Repayment . Except in those situations in which the Corporation may become obligated to pay additional amounts (as described herein), the Notes of this series are not subject to redemption at the option of the Corporation or repayment at the option of the holder prior to maturity.
SECTION 4. Defeasance . The provisions of Article Fourteen of the Indenture apply to the Securities of this Series.
SECTION 5. Payment of Additional Amounts . Subject to the exemptions and limitations set forth below, the Corporation will pay additional amounts to the beneficial owner of this Note that is a "Non-United States person," as defined below, in order to ensure that every net payment on such Note will not be less, due to payment of United States withholding tax, than the amount then due and payable. For this purpose, a "net payment" on the Note means a payment by the Corporation or any paying agent, including payment of principal and interest, after deduction for any present or future tax, assessment, or other governmental charge of the United States. These additional amounts will constitute additional interest on the Note.
The Corporation will not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (13) below.
(1) Additional
amounts will not be payable if a payment on the Note is reduced as a result
of any tax, assessment, or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner of the Note:
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(a) having a relationship with the United States as a citizen, resident, or otherwise;
(b) having had that relationship in the past; or
(c) being considered as having had that relationship.
(2) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) foreign private foundation or other foreign tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid United States federal income tax.
(4) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Corporation's stock entitled to vote.
(5)
Additional amounts will not be payable if a payment on the Note is reduced
as a result of any tax, assessment, or other governmental charge that is
imposed or withheld solely by reason of the beneficial owner of the Note
being a bank extending credit under a loan agreement entered into in the
ordinary course of business.
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For purposes of items (1) through (5) above, "beneficial owner" includes a fiduciary, settlor, partner, member, shareholder, or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation, or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts will not be payable to any beneficial owner of the Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of the Note, or any portion of the Note.
However, this exception to the obligation to pay additional amounts only will apply to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, partner, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment.
(7) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld by reason of the failure of the beneficial owner of the Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts will apply only if compliance with these reporting requirements is required as a precondition to exemption from the tax, assessment or other governmental charge by statute or regulation of the United States or by an applicable income tax treaty to which the United States is a party.
(8) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is collected or imposed by any method other than by withholding from a payment on the Note by the Corporation or any paying agent.
(9) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional
amounts will not be payable if a payment on the Note is reduced as a result
of any tax, assessment, or other governmental charge that is imposed or
withheld by reason
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of the presentation by the beneficial owner of the Note for payment more than 30 days after the date on which the payment becomes due or is duly provided for, whichever occurs later.
(11) Additional amounts will not be payable if a payment on the Note is reduced as result of any:
(a) estate tax;
(b) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any similar tax, assessment, or other governmental charge.
(12) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge required to be withheld by any paying agent from a payment of principal or interest on the Note if the payment can be made without withholding by any other paying agent.
(13) Additional amounts will not be payable if a payment on the Note is reduced as a result of any combination of items (1) through (12) above.
A "United States person" means:
(a) any individual who is a citizen or resident of the United States;
(b) any corporation, partnership, or other entity created or organized in or under the laws of the United States;
(c) any estate if the income of that estate falls within the federal income tax jurisdiction of the United States regardless of the source of the income; and
(d) any trust if a U.S. court is able to exercise primary supervision over its administration and one or more United States persons have the authority to control all of the substantial decisions of the trust.
A "Non-United States person" means a person who is not a United States
person, and "United States" means the United States of America, including
the States and the District of Columbia, its territories, its possessions,
and other areas within its jurisdiction.
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SECTION 6. Redemption for Tax Reasons . The Notes of this series may be redeemed at the option of the Corporation in whole, but not in part, at any time, after giving not less than 30 nor more than 60 calendar days' notice to the Trustee and the holders of the Notes, if the Corporation has or will 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 those 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 up to, but excluding, the date of redemption.
SECTION 7. Events of Default . If an Event of Default (defined in the Indenture as (a) the Corporation's default in the payment of the principal of (or premium, if any, on) the Notes; (b) the Corporation's default in the payment of interest on the Notes within 30 calendar days after the same becomes due; (c) the Corporation's breach of its other covenants contained in this Note or in the Indenture, which breach is not cured within 90 calendar 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 (d) 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.
SECTION 8. Modifications and Waivers . The Indenture permits, with certain exceptions as therein provided, the amendment of the Indenture and the modification of the rights and obligations of the 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 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
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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.
SECTION 9. Obligations Unconditional . No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the 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.
SECTION 10. Authorized Denominations . The Notes are issuable only as registered Notes without coupons in the denominations of $10,000 and any integral multiple in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the holder surrendering the same.
SECTION 11. Registration of Transfer . 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.
If the Notes are to be issued and outstanding pursuant to a book-entry system, the following paragraph is applicable: The Notes are being issued by means of a book-entry system with no physical distribution of certificates to be made except as provided in the Indenture. The book-entry system maintained by The Depository Trust Company ("DTC") will evidence ownership of the Notes, with transfers of ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. The Corporation will recognize Cede & Co., as nominee of DTC, while the registered holder of the Notes, as the owner of the Notes for all purposes, including payment of principal (premium, if any) and interest, notices, and voting. Transfer of principal, premium (if any), interest, and other amounts payable to participants of DTC will be the responsibility of DTC, and transfer of principal (premium, if any) and interest to beneficial owners of the Notes by participants of DTC will be the responsibility of such participants and other nominees of such beneficial owners. So long as the book-entry system is in effect, the selection of any Notes to be redeemed will be determined by DTC pursuant to rules and procedures established by DTC and its participants. The Corporation will not be responsible or liable for such transfers or payments or for maintaining, supervising, or reviewing the records maintained by DTC, its participants, or persons acting through such participants.
If the Notes may be
settled through depositories located in Europe, the following paragraph
is applicable: Transfers of Notes outside of the United States may be effected
through the facilities of Clearstream Banking, société anonyme,
and Euroclear Bank, S.A./N.V., as operator of the Euroclear system, in
accordance with the rules and procedures established by such depositories.
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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, assessment, or other governmental charge, including, without limitation, any withholding tax, payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the Corporation, the Trustee, the Issuing and Paying Agent, and any agent of the Corporation may treat the person in whose name this Note is registered as the owner hereof for all purposes.
SECTION 12. Authentication Date . The Notes of this series shall be dated the date of their authentication.
SECTION 13. Defined Terms . All terms used in this Note which are not defined herein, but are defined in the Indenture shall have the meanings assigned to them in the Indenture.
SECTION 14. Governing Law . THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
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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--............................as Custodian for..............................
(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.
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 28, 2004
Supplementing the Indenture, dated
as of January 1, 1995, between
Bank of America Corporation (successor to NationsBank Corporation)
and
The Bank of New York (successor to U.S. Bank Trust National Association),
as Trustee, as supplemented by a
First Supplemental Indenture dated as of September 18, 1998 thereto
and a
Second Supplemental Indenture dated as of May 7, 2001 thereto
THIS THIRD SUPPLEMENTAL INDENTURE , dated as of July 28, 2004 (the "Third Supplemental Indenture"), is made by and between Bank of America Corporation , a Delaware Corporation (the "Company"), and The Bank of New York , a New York banking corporation (the "Trustee"), under the Indenture referred to herein.
W I T N E S S E T H:
WHEREAS , the Company and the Trustee heretofore executed and delivered an Indenture, dated as of January 1, 1995, as supplemented by a First Supplemental Indenture dated as of September 18, 1998 thereto and a Second Supplemental Indenture dated as of May 7, 2001 thereto (the "Indenture"); and
WHEREAS , pursuant to the Indenture, the Company issued and the Trustee authenticated and delivered one or more series of the Company's senior debt securities (the "Securities"); and
WHEREAS , at present, Section 3.02 of the Indenture requires that the Company or the Trustee, as the case may be, give notice of redemption to the holders of Securities to be redeemed at least 30 and not more than 60 days prior to the date fixed for a redemption;
WHEREAS , the Company has issued a tranche of its Series K Medium-Term Notes entitled, "Callable Inverse Return Notes, due June 2014" (the "Callable Inverse Return Notes"), and the offering document relating to those notes provides that the notice of redemption to the holders of those Securities will be at least two and not more than ten London banking days prior to the date fixed for a redemption;
WHEREAS , a "London banking day" is any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market;
WHEREAS , Section 10.01(e) of the Indenture provides that the Company and the Trustee may amend the Indenture without notice to or consent of the holders of the Securities in order to modify or add to any of the provisions of the Indenture for any Securities that are not Outstanding at the time of such change;
WHEREAS
,
Section 10.01(f) of the Indenture provides that the Company and the Trustee
may amend the Indenture without notice to or consent of the holders of
the Securities in order to cure any ambiguity or to correct or supplement
any provision contained in the Indenture which may be defective or inconsistent
with any other provisions contained in the Indenture or to make such other
provisions in regard to matters or questions arising under the Indenture,
provided such other provisions shall not adversely affect in any material
respect the interests of holders of the Securities, including provisions
necessary or desirable to provide for or facilitate the administration
of the trusts under the Indenture;
WHEREAS , the Company has provided to the Trustee an Opinion of Counsel to the effect that the amendment to the Indenture to revise the redemption notice period for the Callable Inverse Return Notes which are currently Outstanding under the Indenture will not adversely affect in any material respect the interests of the holders of thereof;
WHEREAS , pursuant to Section 10.03 of the Indenture the Trustee is fully protected in relying on such Opinion of Counsel as conclusive evidence that this Third Supplemental Indenture complies with the provisions of Article Ten of the Indenture, and based upon such reliance, the Trustee has agreed to enter into this Third Supplemental Indenture;
WHEREAS , the Company hereafter may be issuing additional series of Securities where the notice of redemption to the holders of such series of Securities will be at least 10 business days and not more than 60 calendar days; and
WHEREAS , this Third Supplemental Indenture has been duly authorized by all necessary corporate action on the part of the Company.
NOW, THEREFORE , the Company and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
CALLABLE INVERSE RETURN NOTES, DUE JUNE 2014
SECTION 1.1 Notice of Redemption. For the series of notes under the Bank of America Corporation, Series K Medium-Term Note Program entitled, "Callable Inverse Return Notes, due June 2014" and bearing CUSIP number 06050 MDG9, the third sentence of Section 3.02 of the Indenture is hereby deleted in its entirety, and there is inserted in lieu thereof the following:
"The Company or the Trustee, as the case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04 , at least two and not more than ten London banking days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a whole or in part. A 'London banking day' means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market."
ARTICLE II
REDEMPTION OF SERIES OF NOTES
DESIGNATED BY OFFICERS OF THE COMPANY
SECTION 2.1 Redeemable
Securities.
Any Securities eligible for (a) mandatory redemption, (b)
redemption upon the occurrence of an obligation of the Company to pay Additional
Amounts or otherwise reimburse a holder of Securities for tax withheld
from any payments of interest or principal by the Company or (c) redemption
at the option of the Company are "Redeemable Securities" for purposes of
this Third Supplemental Indenture.
SECTION 2.2 Notice of Redemption. For any series of Redeemable Securities initially issued after the effective date of this Third Supplemental Indenture, the third sentence of Section 3.02 of the Indenture is hereby deleted in its entirety, and there is inserted in lieu thereof the following:
"The Company or the Trustee, as the case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04 , at least 10 business days and not more than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a whole or in part as determined by the Chief Executive Officer, the Chief Financial Officer, any Senior or other Vice President or the Treasurer of the Company (each, an "Authorized Officer") and evidenced by the preparation of an offering document which specifies the period of notice of such redemption. If the offering document does not specify the period of notice of such redemption, the Company or the Trustee, as the case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04 , at least 30 and not more than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a whole or in part."
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
SECTION 3.2 Indenture and Supplemental Indentures Construed Together. This Third Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Third Supplemental Indenture shall henceforth be read and construed together.
SECTION 3.3 Confirmation and Preservation of Indenture. The Indenture as supplemented by this Third Supplemental Indenture is in all respects confirmed and preserved.
SECTION 3.4 Conflict with Trust Indenture Act. If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act ("TIA") that is required under the TIA to be part of and govern any provision of this Third Supplemental Indenture, the provision of the TIA shall control. If any provision of this Third Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Third Supplemental Indenture, as the case may be.
SECTION 3.5 Severability.
In case any provision in this Third Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 3.6 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
SECTION 3.7 Headings. The Article and Section headings of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Third Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 3.8 Benefits of Third Supplemental Indenture, etc. Nothing in this Third Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Third Supplemental Indenture or the Securities.
SECTION 3.9 Certain Duties and Responsibilities of the Trustees. In entering into this Third Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
SECTION 3.10 Counterparts. The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 3.11 Governing Law. This Third Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
SECTION 3.12 Effective Date. This Third Supplemental Indenture shall be effective on June 3, 2004.
[Signature Page Follows]
IN WITNESS WHEREOF , the parties have caused this Third Supplemental Indenture to be duly executed effective as of June 3, 2004.
Bank of America Corporation
By: /s/ KAREN A. GOSNELL
Name: Karen A. Gosnell
Title: Senior Vice President
The Bank of New York
as Trustee
By: /S/ DEREK KETTEL
Name: Derek Kettel
Title: Agent
August 26, 2004
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Re: Public Offering of $750,000,000 Aggregate Principal Amount
of
4¼% Senior Notes,
due October 2010
Ladies and Gentlemen:
We have acted as counsel to Bank of America Corporation, a Delaware corporation (the "Corporation"), in connection with (i) the issuance of $750,000,000 in aggregate principal amount of its 4¼% Senior Notes, due October 2010 (the "Notes") and (ii) the Registration Statement on Form S-3, Registration No. 333-112708 (the "Registration Statement"), filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), with respect to $30,000,000,000 aggregate principal amount of the Corporation's unsecured debt securities, units, warrants, shares of its preferred stock and shares of its common stock and the Prospectus dated April 14, 2004 constituting a part thereof, as supplemented by the Prospectus Supplement dated August 23, 2004 filed with the Commission pursuant to Rule 424(b) under the Act, relating to the Notes.
As such counsel, we have examined and are familiar with such original or photocopies or certified copies of such records of the Corporation and its subsidiaries, certificates of officers of the Corporation and of public officials and such other documents as we have deemed relevant or necessary as the basis for the opinion set forth below. In such examinations, we have assumed the legal capacity of natural persons, the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such copies. We have also relied upon statements of fact contained in documents that we have examined in connection with our representation of the Corporation.
Based solely upon the foregoing, and in reliance thereon, and subject to the limitations, qualifications and exceptions set forth below, we are of the opinion that the Notes, when (i) executed, issued and delivered by the Corporation to The Bank of New York for authentication in accordance with the Indenture dated as of January 1, 1995, as amended and supplemented from time to time (the "Indenture") between the Corporation and The Bank of New York, as trustee (the "Trustee"), (ii) authenticated and delivered by The Bank of New York, as issuing and paying agent, in accordance with the Indenture and (iii) paid for, all as contemplated in the Board Resolution or Company Order (as each is defined in the Indenture), will have been validly authorized and issued under the Indenture and will constitute valid and legally binding obligations of the Corporation, subject 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 performance of remedies, and further subject to 12 U.S.C. § 1818(b)(6)(D) (or any successor statute) and any bank regulatory powers now or hereafter in effect and to the application of principles of public policy.
We hereby consent to be named in the Registration Statement as attorneys who passed upon the legality of the Notes and to the filing of a copy of this opinion as part of the Corporation's Current Report on Form 8-K to be filed for the purpose of including this opinion as part of the Registration Statement.
Very truly yours,
HELMS MULLISS & WICKER, PLLC
August 23, 2004
AUTHORIZATION OF 4¼% SENIOR NOTES, DUE OCTOBER 2010
WHEREAS, the Board of Directors of Bank of America Corporation (the "Corporation") previously has authorized and approved the issuance and sale for cash, at any time or from time to time, of its unsecured debt securities (the "Debt Securities"), common stock and other securities in one or more public offerings, $30,000,000,000 of which securities have been registered with the Securities and Exchange Commission pursuant to the Corporation's registration statement on Form S-3, Registration No. 333-112708 (the "Shelf");
WHEREAS, the Corporation has issued and sold pursuant to or allocated under the Shelf $11,942,700,000 of its Debt Securities leaving an additional $18,057,300,000 in aggregate principal amount of unallocated Debt Securities, common stock and other securities that may be issued and sold pursuant to the Shelf;
WHEREAS, by resolutions (the "Resolutions") adopted by the Board of Directors (the "Board") of the Corporation at a meeting duly called and held on January 28, 2004, this Committee (the "Committee") was authorized by the Board to take action in connection with the issuance of the Corporation's Debt Securities, common stock and other securities to be offered at the times and on terms to be determined by the Committee;
WHEREAS, this Committee has determined that issuing a series of Debt Securities in the form of six-year senior notes, initially in the principal amount of $750,000,000, is advisable and in the best interests of the Corporation; and
WHEREAS, no stop order suspending the effectiveness of the above described registration statement has been received by the Corporation and no proceedings for that purpose have been instituted or threatened against the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the Resolutions, and the terms and provisions of the Indenture between the Corporation and The Bank of New York, as trustee (the "Senior Trustee"), dated as of January 1, 1995, as amended and supplemented from time to time (the "Senior Indenture"), the issue and sale by the Corporation of a series of its senior indebtedness, initially in the aggregate principal amount of $750,000,000, is hereby authorized and approved, which series of senior notes is designated "4¼% Senior Notes, due October 2010" (the "Senior Notes"), and shall be subject to the terms and entitled to the benefits of the Senior Indenture;
RESOLVED FURTHER, that the Senior Notes to be issued and sold under
the authority of these resolutions shall be allocated from those securities
previously authorized by the Board and registered for sale under the Shelf;
RESOLVED FURTHER, that the amount of this series of Senior Notes shall initially be set at $750,000,000, but may be increased at any time within the next nine months (or as permitted by Internal Revenue Service regulations) upon delivery of a supplemental officers' certificate setting forth the terms of such additional amounts;
RESOLVED FURTHER, that the Senior Notes shall bear interest at the rate of 4¼% per annum, which interest is expected to accrue from August 26, 2004, and be payable semi-annually on April 1 and October 1, commencing October 1, 2004; and the record date for the interest payable shall be the close of business on the fifteenth day of the calendar month preceding each interest payment date;
RESOLVED FURTHER, that the maturity date of the Senior Notes shall be October 1, 2010;
RESOLVED FURTHER, that the initial series of Senior Notes shall be sold to Banc of America Securities LLC and the other Underwriters (as named in the Senior Underwriting Agreement hereinafter described) (the "Senior Underwriters"), pursuant to the terms of the Senior Underwriting Agreement dated as of August 23, 2004 between the Corporation and the Senior Underwriters (the "Senior Underwriting Agreement"), who the Committee understands will reoffer the Senior Notes for sale in a public offering;
RESOLVED FURTHER, that the Senior Notes shall be sold to the Senior Underwriters on August 26, 2004, at a price of 99.128% of the principal amount, and that the Senior Notes shall be initially offered to the public at a price of 99.478% of the principal amount;
RESOLVED FURTHER, that the Committee was advised by the Senior Underwriters that they will initially offer the Senior Notes to certain dealers at the initial public offering price, less a concession not in excess of 0.200% of the principal amount of the Senior Notes, and that the Senior Underwriters may allow, and such dealers may reallow, a concession not in excess of 0.150% of such principal amount on sales to other dealers;
RESOLVED FURTHER, that the Senior Notes shall be issued as Registered Securities (as defined in the Senior Indenture) initially in book-entry only form, represented by one or more global notes registered in the name of The Depository Trust Company, or its nominee, and eligible to trade through the facilities of Clearstream Banking, société anonyme, and Euroclear Bank S.A./N.V., as operator of the Euroclear System, in the manner requested by the Representatives, in denominations of $10,000 or integral multiples thereof, and shall be dated the date of authentication and delivery, which date is expected to occur on or about August 26, 2004 and the form of registered note presented to this Committee and attached to the minutes hereof as Exhibit A , together with such modifications as are appropriate to reflect the determinations of the Committee, is hereby in all respects approved;
RESOLVED FURTHER, that any Authorized Officer (as described herein) is hereby authorized and empowered to execute and deliver, and this Committee hereby approves, the Senior Underwriting Agreement, in the form presented to the Committee and attached to the minutes hereof as Exhibit B , relating, among other things, to the sale of the Senior Notes and to the indemnification of and contribution to the Senior Underwriters, and such Senior
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Underwriting Agreement shall be, and it hereby is, in all respects authorized and approved, the execution thereof being conclusive evidence of such approval;
RESOLVED FURTHER, that, with respect to the Senior Notes, a "Business Day" shall mean any weekday that is not a legal holiday in New York, New York, Charlotte, North Carolina, or Luxembourg and is not a day on which banking institutions in those cities are authorized or required by law or regulation to be closed;
RESOLVED FURTHER, that except in those situations in which the Corporation may become obligated to pay additional amounts (as described herein), the Senior Notes shall not be eligible for redemption or entitled to any sinking fund;
RESOLVED FURTHER, that the Senior Notes shall be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, or any Senior or other Vice President, the corporate seal thereon shall be attested by the Secretary or any Assistant Secretary, and the signatures of the Chief Executive Officer, any Vice President, the Secretary and any Assistant Secretary may be in the form of facsimile signatures of the present or any future Chief Executive Officer, Vice President, Secretary or Assistant Secretary, and should any officer of the Corporation who signs, or whose facsimile signature appears upon, any of the Senior Notes, cease to be such an officer prior to the issuance of such Senior Notes, the Senior Notes so signed or bearing such facsimile signature nevertheless shall be valid, and, without prejudice to the use of the facsimile signatures of any other officer as hereinbefore authorized, the facsimile signatures of Kenneth D. Lewis, Chief Executive Officer of the Corporation, James T. Houghton, Senior Vice President of the Corporation, Karen A. Gosnell, Senior Vice President of the Corporation, Page P. C. Stephens, Senior Vice President of the Corporation, Ann J. Travis, Vice President of the Corporation, Mary Wright Rantala, Vice President of the Corporation, Rachel R. Cummings, Secretary of the Corporation, and Allison L. Gilliam, Assistant Secretary of the Corporation, are hereby expressly approved and accepted;
RESOLVED FURTHER, that pursuant to the provisions of the Senior Indenture, the Chief Executive Officer, the Vice Chairman, the Chief Financial Officer, any Senior Vice President or any Associate General Counsel (each, an "Authorized Officer") be, and each of them is, hereby authorized and empowered to cause the Senior Notes, upon execution thereof, to be delivered to the Senior Trustee under the Senior Indenture, or to any agent designated by the Senior Trustee, for authentication and delivery by it and to deliver to the Senior Trustee or agent thereof, as the case may be, the written order of the Corporation for the authentication and delivery of the Senior Notes and to negotiate, execute and deliver any and all agreements and other documents and certificates necessary in connection with the issuance, sale and delivery of the Senior Notes;
RESOLVED FURTHER, that, unless and until otherwise determined by an
Authorized Officer, The Bank of New York, as Senior Trustee, shall act
as agent for the Corporation for the registration, transfer, exchange and
payment of the Senior Notes (the "Senior Paying Agent"), and as authenticating
agent, and that the offices of the Senior Trustee located at 101 Barclay
Street, New York, New York, hereby is designated, pursuant to the provisions
of the Senior Indenture, as the office or agency of the Corporation where
the Senior Notes may be presented for registration, transfer, exchange
and payment, and the proper officers of the Corporation are
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hereby authorized and empowered to execute and deliver any documents required by the Senior Trustee under the Senior Indenture in connection with such duties;
RESOLVED FURTHER, that whenever the Senior Trustee or Senior Paying Agent, in its capacity as such, shall deem it expedient, it may apply to counsel for the Corporation for advice or instructions, and, for its actions and good faith in such capacity, including, but not limited to, action in reliance on such advice or instructions or on advice of its own counsel, the Corporation shall fully protect and hold harmless that agent from and against any liability;
RESOLVED FURTHER, that the listing of the Senior Notes on the Luxembourg Stock Exchange (the "LSE") is hereby authorized (but shall not be required) and the appointment of The Bank of New York (Luxembourg) S.A. as listing agent for such listing purposes is hereby ratified, confirmed and approved;
RESOLVED FURTHER, that the Authorized Officers of the Corporation, including James T. Houghton, Senior Vice President, Karen A. Gosnell, Senior Vice President, and Page P. C. Stephens, Senior Vice President or any other Authorized Officer be, and they hereby are authorized to take any and all steps necessary or desirable to accomplish the LSE listing (or to withdraw such application), including the preparation and filing of all requisite applications, fee agreements and documents and the payment of all applicable fees and expenses;
RESOLVED FURTHER, that subject to the exemptions and limitations set forth below, the Corporation will pay additional amounts to the beneficial owner of a note that is a non-United States person in order to ensure that every net payment on such Senior Note will not be less, due to payment of United States withholding tax, than the amount then due and payable. For this purpose, a "net payment" on a Senior Note means a payment by the Corporation or any paying agent, including payment of principal and interest, after deduction for any present or future tax, assessment or other governmental charge of the United States. These additional amounts will constitute additional interest on a Senior Note.
The Corporation will not be required to pay additional amounts with respect to the Senior Notes, however, in any of the circumstances described in items (1) through (13) below.
(1) Additional amounts will not be payable if a payment on a note is reduced as a result of any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the note:
(5) Additional amounts will not be payable if a payment on a note is reduced as a result of any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the note being a bank extending credit under a loan agreement entered into in the ordinary course of business.
For purposes of items (1) through (5) above, "beneficial owner" includes a fiduciary, settlor, partner, member, shareholder or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts will not be payable to any beneficial owner of a note that is:
(8) Additional amounts will not be payable if a payment on a note is reduced as a result of any tax, assessment or other governmental charge that is collected or imposed by any method other than by withholding from a payment on a note by the Corporation or any paying agent.
(9) Additional amounts will not be payable if a payment on a note is reduced as a result of any tax, assessment or other governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts will not be payable if a payment on a note is reduced as a result of any tax, assessment or other governmental charge that is imposed or withheld by reason of the presentation by the beneficial owner of a note for payment more than 30 days after the date on which the payment becomes due or is duly provided for, whichever occurs later.
(11) Additional amounts will not be payable if a payment on a note is reduced as result of any:
(13) Additional amounts will not be payable if a payment on a note is reduced as a result of any combination of items (1) through (12) above.
"Non-United States Person" means any holder of the notes other than a United States person. A "United States Person" means:
RESOLVED FURTHER, that prior to the publication of any notice of redemption,
the Corporation shall deliver to the Senior 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;
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RESOLVED FURTHER, that the Senior Notes so redeemed will be redeemed at 100% of their principal amount together with interest accrued up to, but excluding, the date of redemption;
RESOLVED FURTHER, that any Authorized Officer is hereby authorized and empowered to take all steps deemed necessary by such officer to issue and sell the initial series of the Senior Notes, and to increase the amount of issued and outstanding Senior Notes of this series up to the maximum amount authorized and unissued under the Shelf, such actions to include delivery of appropriate Officers Certificates and Company Orders; the execution and delivery of additional Senior Notes; the selection of one or more underwriters and the negotiation, execution and delivery of an appropriate underwriting agreement; the preparation of necessary amendments or supplements to the applicable global prospectus supplement for the Senior Notes; and the execution and delivery of necessary closing documents;
RESOLVED FURTHER, that all actions previously taken by the Corporation and its Authorized Officers in connection with the issuance and sale of the Senior Notes are hereby ratified, confirmed and approved; and
RESOLVED FURTHER, that the officers of the Corporation be, and they hereby are, authorized and directed to do any and all things necessary, appropriate or convenient to carry into effect the foregoing resolutions.
August 23, 2004
Reporters May Contact:
Terry Francisco, Bank of America Corporation, 704.386.4343
Terry.h.francisco@bankofamerica.com
Bank of America prices $750 million in 10-year senior notes
CHARLOTTE - Bank of America Corporation today priced a global offering of $750 million in 6-year fixed-rate senior notes for sale in the United States and abroad.
The senior notes have a coupon interest rate of 4.25%, payable semi-annually on the 1 st of April and October with the first interest payment on October 1, 2004. The notes mature on October 1, 2010.
These notes will be sold through underwriters led by Banc of America Securities LLC and include Barclays Capital; Bear, Stearns & Co. Inc.; Blaylock & Partners, L.P.; Goldman, Sachs & Co.; Guzman & Company; Ramirez & Co., Inc.; Siebert Capital Markets and The Williams Capital Group, L.P. Closing is scheduled for August 26, 2004.
The debt issue is part of a shelf registration for corporate debt and other securities previously declared effective by the Securities and Exchange Commission. Bank of America intends to list the notes on the Luxembourg Stock Exchange.
Proceeds from the issue will be used for general corporate purposes.
Bank of America stock (ticker: BAC) is listed on the New York, Pacific, and London exchanges and certain shares are listed on the Tokyo stock exchange.
www.bankofamerica.com/newsroom
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