Exhibit 1.1
BANK OF AMERICA
CORPORATION
UNDERWRITING
AGREEMENT
$2,000,000,000 FLOATING RATE
CALLABLE SENIOR NOTES,
DUE FEBRUARY 2010
New York, New York
February 8, 2007
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 one or more series 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 Trust Company, N.A.,
as successor trustee to The Bank of New York (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,” as to each series of Securities, shall mean
(A) the Base Prospectus; (B) the applicable 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; (C) any other free writing
prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of each Disclosure Package, and
(D) the applicable Final Term Sheet (as defined herein), which
also shall be identified in Schedule III hereto. As of 4:20 p.m.
(Eastern time) on the date of this Agreement (the “Applicable
Time”), each 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 a 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
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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, each Disclosure Package or the
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 any 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
the 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.
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(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 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.
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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 a 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 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 each Disclosure Package relating to a series of
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 a 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 each 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 each
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.
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(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; 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) trust preferred
securities to be issued in underwritten offerings (under
Registration Statement No. 333-133852), or (iii) pursuant
to which affiliates of the Company offer securities of the Company
in secondary market transactions.
(g) As to each series of the
Securities, the Company will prepare a final term sheet containing
only a description of such series, in a form approved by the
Representatives and contained in Schedule IV of this Agreement, and
will file each 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 (each such term sheet, a
“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
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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 a 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 such 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 not already done so, file a new
shelf registration statement relating to such 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 any of the
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 such 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
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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
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) each 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 each
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;
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(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 each 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, each 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, a
Disclosure Package, or the 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 each 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 equitabl
