BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
CALLABLE PRIME RATE SENIOR NOTES, DUE SEPTEMBER 2009
New York, New York
September 21, 2006
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, the
Third Supplemental Indenture dated as of July 28, 2004 and the
Fourth Supplemental Indenture dated April 28, 2006 (as so
supplemented, the "Indenture"). The Securities are described
more fully in the 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 has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No.
333-133852), which contains a base prospectus (the "Base
Prospectus"), to be used in connection with the public offering and
sale of the Securities. Such registration statement, as
amended, including the financial statements, exhibits and schedules
thereto, at each time of effectiveness under the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), including any
required information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act or the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Exchange
Act"), is called the "Registration Statement." The term
"Prospectus" shall mean the final prospectus supplement relating to
the Securities, together with the Base Prospectus, that is first
filed pursuant to Rule 424(b) after the date and time that this
Agreement is executed and delivered by the parties hereto (the
"Execution Time"). Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S‑3 under the Securities Act; any
reference to any amendment or supplement to the Prospectus shall be
deemed to refer to and include any documents filed after the date
of such Prospectus under the Exchange Act, and incorporated by
reference in such Prospectus; and any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement. All references in this Agreement to
the Registration Statement, the Prospectus, or any amendments or
supplements to either of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
(ii) The term "Disclosure
Package" shall mean (A) the issuer free writing prospectuses as
defined in Rule 433 of the Securities Act (each, an "Issuer Free
Writing Prospectus"), if any, identified in Schedule III hereto;
(B) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the
Disclosure Package, and (C) the Final Term Sheet (as defined
herein), which also shall be identified in Schedule III
hereto. As of 2:00 p.m. (Eastern time) on the date of this
Agreement (the "Applicable Time"), the Disclosure Package did not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply
to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, it being
understood and agreed that such information furnished by or on
behalf of any Underwriter consists only of the information
described as such in Section 7(b) hereof (the "Underwriter
Information").
(iii) As of the date hereof,
when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) under the Securities Act, when any supplement or
amendment to the Prospectus is filed with the Commission, at the
Closing Date (as hereinafter defined) and, with respect to the
Registration Statement in (A) and (B) below, as of the Applicable
Time, (A) the Registration Statement is effective, the Registration
Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, and the Indenture
complied, complies or will comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (the "Trust Indenture Act"), and the Exchange
Act, (B) the Registration Statement, as amended as of any such
time, did not, does not and will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, and (C) the Prospectus, as amended or
supplemented as of any such time, did not, does not and 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 (I) 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 (II) the
Underwriter Information. The documents which are incorporated
by reference in the Registration Statement, the Disclosure Package
or the
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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 Securities Act,
the Exchange Act, 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. 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 Prospectus, and the Company is without
knowledge that any proceedings have been instituted for either
purpose.
(iv) (A) At the earliest time
after the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the
Securities Act) and (B) as of the date of the execution and
delivery of this Agreement (with such date being used as a
determination date for purposes of this clause (B)), the Company
neither was nor is an Ineligible Issuer (as defined in Rule 405 of
the Securities Act).
(v) Neither any Issuer
Free Writing Prospectus nor the Final Term Sheet, as of its issue
date and at all subsequent times through the completion of the
offering contemplated hereby or until any earlier date that the
Company notified or notifies the Representatives as described in
the next sentence, did not, does not, and will not include any
information that conflicted, conflicts, or will conflict with the
information contained in the Registration Statement, including any
document incorporated by reference therein or the Prospectus, that
has not been superseded or modified. If at any time following
issuance of an Issuer Free Writing Prospectus and prior to the end
of the Prospectus Delivery Period (as defined below), there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement or the
Prospectus, the Company has promptly notified or will promptly
notify the Representatives and has promptly amended or supplemented
or will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such
conflict. The foregoing two sentences do not apply to
statements in or omissions from an Issuer Free Writing Prospectus
based upon and in conformity with Underwriter Information.
(vi) The Company has not
distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters' distribution
of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement, the Prospectus and any Issuer Free Writing Prospectus
reviewed and consented to by the Underwriters and included in
Schedule III hereto.
(vii) (A) At the time of filing the
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (C) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of
Rule 163(c) of the Securities Act) made any offer relating to
the Securities in reliance on the exemption of Rule 163 of the
Securities Act, and (D) at the Execution Time (with such
date being used as the determination date for purposes of this
clause (D)), the Company was and is a "well‑known seasoned
issuer" as defined in Rule 405 of the Securities Act.
The Registration
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Statement is an "automatic shelf registration statement," as
defined in Rule 405 of the Securities Act, the Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
of the Securities Act objecting to use of the automatic shelf
registration statement form and the Company has not otherwise
ceased to be eligible to use the automatic shelf registration
statement form.
(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 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 in
all material respects with the selling restrictions set forth in
the Prospectus under the caption "Underwriting-Selling
Restrictions."
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
book-entry form, 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) During the period
beginning on the Applicable Time and ending on the later of the
Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer
(except for delivery requirements imposed because such Underwriter
or dealer is an affiliate of the Company), including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (the "Prospectus Delivery Period"), the Company will not
file any amendment to the Registration Statement or supplement to
the Base Prospectus or the Disclosure Package (including the
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
Prospectus to be filed with the Commission pursuant to Rule 424 via
EDGAR. The Company
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will advise the Representatives promptly (i) when the
Prospectus shall have been filed with the Commission pursuant to
Rule 424, (ii) when any amendment to the Registration Statement or
the Disclosure Package relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the
Prospectus or the Disclosure Package 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
during the Prospectus Delivery Period, 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 Disclosure Package or the 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 or then prevailing, as the case may be, not
misleading, or if it shall be necessary to amend or supplement the
Disclosure Package or the Prospectus to comply with the Securities
Act or the Exchange Act, 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 (including, if consented to by the
Underwriters, by means of an Issuer Free Writing Prospectus), and
will give immediate notice, and confirm in writing, to the
Underwriters to cease the solicitation of offers to purchase the
Securities, and furnish to the Underwriters a reasonable number of
copies of such amendment or supplement.
(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 Securities 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
Securities Act, as many copies of the 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 investors;
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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 Securities Act; provided, however, the Company may, at
any time, offer or sell or announce the offering of securities (i)
covered by a registration statement on Form S-8 or (ii) covered by
a registration statement on Form S-3 and (A) pursuant to which the
Company issues securities under one of the Company's medium-term
note programs (including, without limitation, the Company's Series
K Medium-Term Note Program and the Company's InterNotes Program),
(B) pursuant to which the Company issues securities for its
dividend reinvestment plan, or (C) offered in the Prospectus.
(g) The Company will
prepare a final term sheet containing only a description of the
Securities, in a form approved by the Representatives and contained
in Schedule IV of this Agreement, and will file such term sheet
pursuant to Rule 433(d) under the Securities Act as promptly as
possible, but in any case not later than the time required by such
rule (such term sheet, the "Final Term Sheet").
(h) The Company
represents that it has not made and agrees that, unless it obtains
the prior written consent of the Representatives, it will not make,
any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
"free writing prospectus" (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives
shall be deemed to have been given in respect of the Issuer Free
Writing Prospectuses included in Schedule III hereto. Any
such free writing prospectus consented to by the Representatives is
hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company agrees that (i) it has treated and
will treat as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) it has
complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The
Company consents to the use by any Underwriter of a free writing
prospectus that (a) is not an "issuer free writing prospectus" as
defined in Rule 433, and (b) contains only (i) information
describing the preliminary terms of the Securities or their
offering, (ii) information permitted by Rule 134 under the
Securities Act or (iii) information that describes the final
terms of the Securities or their offering and that is included in
the Final Term Sheet of the Company contemplated in paragraph (g)
above.
(i) If immediately
prior to the third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the
Securities remain unsold by the Underwriters, the Company will file
prior to the Renewal Deadline, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement
relating to the Securities, in a form satisfactory to the
Representatives. If the Company is no longer eligible to file
an automatic shelf registration statement, the Company will prior
to the Renewal Deadline, if it has
6
not already done so, file a new shelf registration statement
relating to the Securities, in a form satisfactory to the
Representatives, and will use its best efforts to cause such
registration statement to be declared effective within 60 days
after the Renewal Deadline. The Company will take all other
action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References
herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(j) If at any time
when Securities remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to
Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will
(i) promptly notify the Representatives, (ii) promptly
file a new registration statement or post-effective amendment on
the proper form relating to the Securities, in a form satisfactory
to the Representatives, (iii) use its best efforts to cause
such registration statement of post-effective amendment to be
declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take
all other action necessary or appropriate to permit the public
offering and sale of the Securities to continue as contemplated in
the registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(k) The Company agrees to
pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) of the Securities
Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the Securities
Act.
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) For the period from
and after effectiveness of this Agreement and prior to the Closing
Date:
(i) no stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and the Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
of the Securities Act objecting to use of the automatic shelf
registration statement form (unless the Securities are duly
registered in the manner contemplated by Rule 401(g)(2) to the
satisfaction of the Representatives prior to the Closing Date);
(ii) the Company shall
have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the
manner and
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within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective
amendment to the Registration Statement containing the information
required by such Rule 430B, and such post-effective amendment shall
have become effective (if not automatically effective under the
rules of the Commission);
(iii) the Final Term Sheet, and
any other material required to be filed by the Company pursuant to
Rule 433(d) under the Securities Act, shall have been filed with
the Commission within the applicable time periods prescribed for
such filings under such Rule or, to the extent applicable, under
Rule 164(b); and
(iv) the NASD shall have raised
no objection to the fairness and reasonableness of the underwriting
terms and arrangements.
(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 (v) through (xi) 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)
through (iv) 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 Disclosure Package and the Prospectus, and is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended; Bank of America, N.A. (the "Principal
Subsidiary Bank") is a national banking association formed under
the laws of the United States and authorized thereunder to transact
business;
(ii) each of the Company
and the Principal Subsidiary Bank is qualified or licensed to do
business as a foreign corporation in any jurisdiction in which such
counsel has knowledge that the Company or the Principal Subsidiary
Bank, as the case may be, is required to be so qualified or
licensed;
(iii) all the outstanding
shares of capital stock of the Principal Subsidiary Bank have been
duly and validly authorized and issued and are fully paid and
(except as provided in 12 U.S.C. § 55, as amended)
nonassessable, and, except as otherwise set forth in the Disclosure
Package and the Prospectus, all outstanding shares of capital stock
of the Principal Subsidiary Bank (except directors' qualifying
shares) are owned, directly or indirectly, by the Company free and
clear of any perfected security interest and such counsel is
without knowledge of any other security interests, claims, liens or
encumbrances;
(iv) 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, the Disclosure Package, or the 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, the Disclosure Package, or
the
8
Prospectus, or to be filed as an exhibit to the Registration
Statement, is not so described or filed as required;
(v) the Indenture and the
Securities conform in all material respects to the descriptions
thereof contained in the Disclosure Package and the Prospectus;
(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) the Registration Statement has
become effective under the Securities Act; n
