Exhibit 4.11
====================================
[________] SUPPLEMENTAL INDENTURE
between
BANK OF AMERICA CORPORATION
and
THE BANK OF NEW YORK
Dated as of [_______, ____]
=====================================
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definition of Terms.............................. 2
ARTICLE 2 GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1 Designation and Principal Amount................. 4
SECTION 2.2 Maturity......................................... 4
SECTION 2.3 Form and Payment................................. 4
SECTION 2.4 Global Form...................................... 5
SECTION 2.5 Interest......................................... 6
ARTICLE 3 PREPAYMENT OF THE NOTES.................................
SECTION 3.1 Special Event Prepayment......................... 7
SECTION 3.2 Optional Prepayment by Company................... 7
SECTION 3.3 No Sinking Fund.................................. 7
ARTICLE 4 EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period............. 8
SECTION 4.2 Notice of Extension.............................. 8
SECTION 4.3 Limitation of Transactions....................... 9
ARTICLE 5 EXPENSES
SECTION 5.1 Payment of Expenses.............................. 9
SECTION 5.2 Payment Upon Resignation or Removal.............. 10
ARTICLE 6 COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange........................... 10
ARTICLE 7 FORM OF NOTE
SECTION 7.1 Form of Note..................................... 10
ARTICLE 8 ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes.......................... 17
ARTICLE 9 MISCELLANEOUS
SECTION 9.1 Ratification of Indenture........................ 18
SECTION 9.2 Trustee Not Responsible for Recitals............. 18
SECTION 9.3 Governing Law.................................... 18
SECTION 9.4 Separability..................................... 18
SECTION 9.5 Counterparts..................................... 18
i
[________] SUPPLEMENTAL INDENTURE
THIS [________] SUPPLEMENTAL INDENTURE, dated as of [_______,
____] (the "[________] Supplemental Indenture"), between BANK OF AMERICA
CORPORATION, a Delaware corporation (the "Company"), and THE BANK OF NEW YORK,
as trustee (the "Trustee"), under an Indenture dated as of October 1, 2001
between the Company and the Trustee (the "Indenture").
WHEREAS, the Company desires to provide for the establishment,
under the terms of the Indenture, of a series of its securities to be known as
its [__%] Junior Subordinated Deferrable Interest Notes due [____] (the
"Notes"), the form and substance of such Notes and the terms, provisions and
conditions thereof, to be set forth as provided in the Indenture and this
[________] Supplemental Indenture; and
WHEREAS, under the terms of an Underwriting Agreement dated as
of October __, 2001 (the "Underwriting Agreement"), among the Company, BAC
Capital Trust [_] (the "Trust") and the Underwriters named therein (the
"Underwriters"), the Trust has agreed to sell to the Underwriters $__ aggregate
liquidation amount of its [___%] Capital Securities (such securities being of
the type referred to in the Indenture as the "Preferred Securities" and in this
[________] Supplemental Indenture as the "Capital Securities"); and
WHEREAS, under the terms of a Subscription Agreement dated as
of October __, 2001 between the Trust and the Company (the "Subscription
Agreement"), the Company has committed to purchase all of the common securities
of the Trust (the "Common Securities") which Common Securities represent at
least 3% of the capital of the Trust; and
WHEREAS, the Trust proposes to invest the gross proceeds from
such offering of Capital Securities, together with the gross proceeds from the
issuance and sale by the Trust to the Company of the Common Securities, in the
Notes, as a result of which the Trust will initially purchase
[$_________________] aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this [________] Supplemental Indenture; and
WHEREAS, all requirements necessary to make this [________]
Supplemental Indenture a valid instrument in accordance with its terms and to
make the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this [________] Supplemental Indenture have been duly
authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this [________] Supplemental Indenture unless otherwise provided herein;
(b) a term defined anywhere in this [________] Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this [________] Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii) Delaware Trustee;
(iv) Depositary; (v) Capital Security Certificate; (vi) Property Trustee; (vii)
Regular Trustee;
(g) the following terms have the meanings given to them in this
Section 1.1;
"Additional Interest" shall have the meaning set forth in Section
-------------------
2.5.
"Capital Treatment Event" means the reasonable determination by the
-----------------------
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement, action or decision is announced on or
after the date of original issuance of the Capital Securities, there is more
than an insubstantial risk that the Company will not be entitled to treat an
amount equal to the aggregate liquidation amount of the Capital Securities as
Tier 1 capital (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve Board, as then in effect and
applicable to the Company.
"Compounded Interest" shall have the meaning set forth in Section
--------------------
4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
-----------
"Declaration" means the Amended and Restated Declaration of Trust
-----------
of BAC Capital Trust [_], a Delaware statutory business trust, dated as of
[________, ____].
2
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
"Dissolution Election" means that, as a result of the election of the
--------------------
Company, as Sponsor, the Trust is to be dissolved in accordance with the
Declaration, and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata or in any other
--- ----
manner specified in the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
--------------------------------
Section 4.1.
"Global Note" shall have the meaning set forth in Section 2.4.
-----------
"Holder" means any person in whose name the Notes are registered on
------
the register kept by the Company or the Property Trustee in accordance with the
terms hereof.
"Interest Payment Date" shall have the meaning set forth in Section
---------------------
2.5.
"Investment Company Event" means the receipt by the Trust of an
------------------------
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Capital
Securities.
"Maturity Date" means the date on which the Notes mature and on which
-------------
the principal shall be due and payable together with all accrued and unpaid
interest thereon, including Compounded Interest and Additional Interest, if any.
"Maturity Repayment Price" means the price, at the Maturity Date,
------------------------
equal to the principal amount of, plus accrued interest on the, Notes.
"Non-Book-Entry Capital Securities" shall have the meaning set forth
---------------------------------
in Section 2.4.
"Optional Prepayment Price" means 100% of the outstanding principal
-------------------------
amount of the Notes to be redeemed, plus any accrued and unpaid interest thereon
up to, but excluding the date of such prepayment.
"Optional Prepayment" means prepayment prior to the Maturity Date of
-------------------
the Notes at the option of the Company in whole or in part at any time on or
after [________, ____].
"Special Event" means a Tax Event, Capital Treatment Event or an
-------------
Investment Company Event.
"Special Event Prepayment" means a prepayment of the Notes prior to
------------------------
[________, ____], in whole but not in part, pursuant to a Tax Event, a Capital
Treatment Event or an Investment Company Event.
3
"Special Event Prepayment Price" means 100% of the outstanding
------------------------------
principal amount of the Notes, plus any accrued and unpaid interest thereon up
to but excluding the date of prepayment.
"Tax Event" means that (i) the Company shall have received an
---------
opinion of a nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
original issuance of the Capital Securities, there is more than an insubstantial
risk that interest payable on the Notes is not, or within 90 days of the date
thereof, will not be deductible, in whole or in part, by the Company for United
States federal income tax purposes or (ii) the Regular Trustees have been
informed by a nationally recognized independent tax counsel that a No
Recognition Opinion cannot be delivered. "No Recognition Opinion" means an
opinion of a nationally recognized independent tax counsel experienced in such
matters, which opinion may rely on published revenue rulings of the Internal
Revenue Service, to the effect that the holders of the Capital Securities and
Common Securities will not recognize any gain or loss for United States federal
income tax purposes as a result of the dissolution of the Trust and the
distribution of the Notes.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1 Designation and Principal Amount.
--------------------------------
There is hereby authorized and established under the terms of the
Indenture a series of the Company's securities designated the "[__%] Junior
Subordinated Deferrable Interest Notes due [____]" limited in aggregate
principal amount to [$_________________], which amount shall be as set forth in
any written order of the Company for the authentication and delivery of the
Notes pursuant to Section 2.04 of the Indenture as well as in any subsequent or
supplemental written order of the Company.
SECTION 2.2 Maturity.
--------
The Maturity Date for the Notes is [________, ____].
SECTION 2.3 Form and Payment.
----------------
Except as provided in Section 2.4, the Notes shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on the Notes issued in certificated form will be payable, the transfer
of such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
-------- -------
Company by check mailed to the Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of any
Notes is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest,
4
if any) on such Notes held by the Property Trustee will be made at such place
and to such account as may be designated by the Property Trustee.
SECTION 2.4 Global Form.
-----------
(a) In connection with a Dissolution Election,
(i) the Notes in certificated form shall be presented to the
Trustee by the Property Trustee to be exchanged for one or more fully registered
securities representing the aggregate principal amount of all then outstanding
Notes as a Global Security to be registered in the name of the Depositary, or
its nominee (a "Global Note"), and delivered by the Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the instructions
of the Regular Trustees. Upon any such presentation, the Company shall execute a
Global Note in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this [________] Supplemental Indenture. Payments on the Notes issued as a Global
Note will be made to the Depositary; and
(ii) if any Capital Securities are held in certificated form
and not in book-entry form, the Notes in certificated form may be presented toI
the Trustee by the Property Trustee and any Capital Security Certificate which
represents Capital Securities other than Capital Securities held by the Clearing
Agency or its nominee ("Non-Book-Entry Capital Securities") will be deemed to
represent beneficial interests in Notes presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate liquidation
amount of the Non-Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Security Registrar for transfer or reissuance,
at which time such Capital Security Certificates will be canceled and a Note,
registered in the name of the holder of the Capital Security Certificate or the
transferee of the holder of such Capital Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Security Certificate canceled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this [________] Supplemental Indenture. On issue of such
Notes, Notes with an equivalent aggregate principal amount that were presented
by the Property Trustee to the Trustee will be deemed to have been canceled.
(b) A Global Note may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Exchange Act or
other applicable statute or regulation, and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, the Company
will execute, and, subject to Article II of the Indenture, the Trustee, upon
written notice from the Company, will authenticate and make available for
delivery the Notes in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Note in exchange for such Global
5
Note. In addition, the Company may at any time determine that the Notes shall no
longer be represented by a Global Note. In such event the Company will execute,
and subject to Section 2.07 of the Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in definitive registered
form without coupons, in authorized denominations, the Global Note shall be
canceled by the Trustee. Such Notes in definitive registered form issued in
exchange for the Global Note shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Notes to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
SECTION 2.5 Interest.
---------
(a) Each Note will bear interest at the rate of [__%] per annum
(the "Coupon Rate") from October __, 20[__] until the principal thereof becomes
due and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the Coupon Rate, compounded quarterly [semi-annually], payable
(subject to the provisions of Article IV) quarterly [semi-annually] in arrears
on January 15, April 15, July 15 and October 15 [January 15 and July 15] of each
year (each, an "Interest Payment Date"), commencing on January 15, [____], to
the Person in whose name such Note or any predecessor Note is registered at the
close of business on the regular record date for such interest installment,
[which, in respect of any Notes of which the Property Trustee is the Holder of a
Global Note, shall be the close of business on the Business Day next preceding
that Interest Payment Date. Notwithstanding the foregoing sentence, if the
Capital Securities are no longer in book-entry only form, the relevant record
dates shall be January 1, April 1, July 1 and October 1 [January 1 and July 1]
prior to the regular Interest Payment Date.]
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly [semi-annual] period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in such a 30-day
period. In the event that any date on which interest is payable on the Notes is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Notes, the Trust or the Property Trustee is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other domestic taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Notes held by the Property Trustee, such additional amounts as
shall be required so that the net amounts received and retained by the Trust and
the Property
6
Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee would
have received had no such taxes, duties, assessments or other government charges
been imposed.
ARTICLE 3
PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment.
------------------------
If a Special Event has occurred and is continuing prior to
[________, ____], the Company shall have the right, upon not less than 30 days'
nor more than 60 days' notice to the Holders of the Notes, to prepay the Notes,
in whole but not in part, for cash within 90 days following the occurrence of
such Special Event (the "90 Day Period") at a prepayment price equal to the
Special Event Prepayment Price. The Special Event Prepayment Price shall be paid
prior to 12:00 noon, New York time, on the date of such repayment or such
earlier time as the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Special Event Prepayment Price
by 10:00 a.m., New York time, on the date such Special Event Prepayment Price is
to be paid.
SECTION 3.2 Optional Prepayment by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article 14 of the Indenture, the Company shall have the right to
prepay the Notes, in whole or in part, at any time and from time to time, on or
after [________, ____], at a redemption price equal to the Optional Prepayment
Price. Any prepayment pursuant to this paragraph will be made upon not less than
30 days' nor more than 60 days' notice to the Holders of the Notes. If the Notes
are only partially prepaid pursuant to this Section 3.2, the Notes will be
prepaid pro rata or by lot or by any other method utilized by the Trustee;
--- ----
provided, that if at the time of prepayment the Notes are registered as a Global
--------
Note, the Depositary shall determine, in accordance with its procedures, the
principal amount of such Notes held by each Holder of a Note to be prepaid. The
Optional Prepayment Price shall be paid prior to 12:00 noon, New York time, on
the date of such prepayment or at such earlier time as the Company determines
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Optional Prepayment Price by 10:00 a.m., New York time, on the date such
Optional Prepayment Price is to be paid.
(b) If a partial prepayment of the Notes would result in the
delisting of the Capital Securities issued by the Trust from any national
securities exchange or other organization on which the Capital Securities are
then listed, the Company shall not be permitted to effect such partial
prepayment and may only prepay the Notes in whole.
SECTION 3.3 No Sinking Fund.
---------------
The Notes are not entitled to the benefit of any sinking fund.
7
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
------------------------------------
The Company shall have the right, at any time and from time to time
during the term of the Notes, to defer payments of interest by extending the
interest payment period of such Notes for a period not exceeding 20 [10]
consecutive quarterly [semi-annual] periods (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be due
and payable; provided that no Extended Interest Payment Period may extend beyond
-------- ----
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly [semi-annually] for each quarterly
[semi-annual] period of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Notes, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall be
payable to the Holders of the Notes in whose names the Notes are registered in
the Security Register on the first record date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such period
together with all such previous and further extensions thereof shall not exceed
20 [10] consecutive quarterly [semi-annual] periods, or extend beyond the
Maturity Date of the Notes. Upon the termination of any Extended Interest
Payment Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
SECTION 4.2 Notice of Extension.
-------------------
(a) If the Property Trustee is the only registered Holder of the
Notes at the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to the Regular Trustees, the Property Trustee
and the Trustee of its selection of such Extended Interest Payment Period at
least one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable, or
(ii) the date on which the Trust is required to give notice of the record date,
or the date on which such Distributions are payable, to the New York Stock
Exchange or any other exchange upon which the Notes or Trust Securities are
listed or any other applicable self-regulatory organization or to holders of the
Capital Securities issued by the Trust, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only Holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Notes and the Trustee written notice of its
selection of such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to the New York Stock Exchange or any other exchange upon
which the
8
Notes or Trust Securities are listed or any other applicable
self-regulatory organization or to Holders of the Notes.
(c) The quarterly [semi-annual] period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the 20 [10] quarterly [semi-annual] periods permitted in computing the maximum
Extended Interest Payment Period permitted under Section 4.1.
SECTION 4.3 Limitation of Transactions.
--------------------------
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1 and such Extended Interest Payment Period is
continuing or (ii) there shall have occurred and be continuing any Event of
Default or Nonpayment, as defined in the Indenture, then (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of its capital stock or the exchange or conversion of one class
or series of Company capital stock for another class or series of its capital
stock or (iii) the purchase of fractional interests in shares of its capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such capital stock or security being converted or exchanged) or make any
guarantee payment with respect thereto and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Company which
rank pari passu with or junior to the Notes.
ARTICLE 5
EXPENSES
SECTION 5.1 Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Notes to
the Property Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the Notes,
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization, maintenance and
dissolution of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the underwriters payable pursuant to the
Underwriting Agreement), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s),
9
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this [________] Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise stated,
the Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property Trustee, as the
case may be, pursuant to Section 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE 6
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
----------------------
If the Notes are to be issued as a Global Note in connection with
the distribution of the Notes to the holders of the Capital Securities upon a
Dissolution Election, the Company will use its best efforts to list such Notes
on any stock exchanges on which the Capital Securities are then listed.
ARTICLE 7
FORM OF NOTE
SECTION 7.1 Form of Note.
------------
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
10
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a Global
Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Bank of New York, as Property Trustee of BAC
Capital Trust [_] (the "Trust"). This Note is exchangeable for Notes registered
in the name of a person other than The Bank of New York, as Property Trustee of
BAC Capital Trust [_] or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Note may be registered except in
limited circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company, New York ("DTC") to the issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of CEDE & CO. or such other name as requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A BANK DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING AFFILIATE OF BANK OF AMERICA CORPORATION AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY AND INVOLVES INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
$_______________ CUSIP No. __ __
No._____________
BANK OF AMERICA CORPORATION
[__%] JUNIOR SUBORDINATED DEFERRABLE INTEREST NOTES
DUE [____]
BANK OF AMERICA CORPORATION, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________, or
registered assigns, the principal sum of _____________ Dollars ($___________) on
[________, ____] (the "Maturity Date"), and to pay interest on said principal
sum from [________, ____] or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly [semi-annually] (subject to deferral as set forth
herein) in arrears on January 15, April 15, July 15 and October 15 [January 15
and July 15] of each year commencing January 15, [____], at the rate of [__%]
per annum until the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded quarterly
[semi-annually]. The amount of interest payable on any Interest Payment Date
shall be
11
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the business day next preceding such Interest Payment Date.
[IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER
REPRESENTED BY A GLOBAL NOTE -- which shall be the close of business on January
1, April 1, July 1 or October 1 [January 1 and July 1]]. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Note shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Note is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Note will be made at such place and to such account as may be
designated by the Property Trustee. As used herein, the term "Business Day"
shall mean any day other than a day on which federal or state banking
institutions in New York, New York, or Charlotte, North Carolina, are authorized
or obligated by law, executive order or regulation to close.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Obligations (as defined in the Indenture) and this Note is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Note, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Obligations, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
12
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name by its duly authorized officers.
BANK OF AMERICA CORPORATION
By: ______________________
Name:_____________________
[Seal] Title:____________________
Attest:
By: ______________________
Name: _____________________
Title: ____________________
13
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated ___________________
The Bank of New York,
as Trustee
By _________________________
Authorized Signatory
14
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of October __, 2001, duly executed and delivered between the Company
and The Bank of New York, as Trustee (the "Trustee"), as supplemented by the
________ Supplemental Indenture dated as of [________, ____] (the "____
Supplemental Indenture"), between the Company and the Trustee (the Indenture as
so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Notes is limited in aggregate principal amount as specified in
the ________ Supplemental Indenture.
Because of the occurrence and continuation of a Special Event, as
defined in the Indenture, in certain circumstances, this Note may become due and
payable at a prepayment price equal to 100% of the principal amount of the
Notes, plus any accrued and unpaid interest thereon up to but excluding the date
of prepayment (the "Special Event Prepayment Price"). The Special Event
Prepayment Price shall be paid prior to 12:00 noon, New York time, on the date
of such prepayment or at such earlier time as the Company determines. The
Company shall have the right to prepay this Note at the option of the Company,
in whole or in part at any time on or after [________, ____] (an "Optional
Prepayment"), or at any time in certain circumstances upon the occurrence of a
Special Event, at a redemption price equal to 100% of the outstanding principal
amount of the Junior Subordinated Notes, plus any accrued and unpaid interest
thereon up to but excluding the date of prepayment (the "Optional Prepayment
Price"). Any prepayment pursuant to this paragraph will be made upon not less
than 30 days' nor more than 60 days' notice, at the Optional Prepayment Price.
If the Notes are only partially prepaid by the Company pursuant to an Optional
Prepayment, the Notes will be prepaid pro rata or by lot or by any other method
--- ----
utilized by the Trustee; provided that if, at the time of prepayment, the Notes
are registered as a Global Note, the Depositary shall determine the principal
amount of such Notes held by each Note holder to be prepaid in accordance with
its procedures.
In the event of prepayment of this Note in part only, a new Note or
Notes of this series for the unrepaid portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
15
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall (i) reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the Holder of each Note so affected, or (ii) reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Note then
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the Notes
of any series at the time outstanding affected thereby, on behalf of all of the
Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences. Any
such consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the
Notes and from time to time to defer payment of interest by extending the
interest payment period of such Notes for a period not exceeding 20 [10]
consecutive quarterly [semi-annual] periods (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Notes to the extent that payment of such interest is enforceable under
applicable law); provided that no Extended Interest Payment Period may last
-------- ----
beyond the Maturity Date of the Notes. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20 [10]
consecutive quarterly [semi-annual] periods or extend the Maturity Date of the
Notes. At the termination of any such Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment Period, subject to
the requirements contained in this paragraph.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee 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 and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
16
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
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, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
This Global Note is exchangeable for Notes in definitive form only
under certain limited circumstances set forth in the Indenture. Notes of this
series so issued are issuable only in registered form without coupons in
denominations of $__ and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth, Notes
of this series so issued are exchangeable for a like aggregate principal amount
of Notes of this series of a different authorized denomination, as requested by
the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
ARTICLE 8
ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes.
-----------------------
Notes in the aggregate principal amount of [$_________________]
may, upon execution of this [________] Supplemental Indenture, be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes to or upon the written order
of the Company, signed by any Authorized Officer, as defined in the Indenture,
without any further action by the Company.
17
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this [________] Supplemental
Indenture, is in all respects ratified and confirmed, and this [________]
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this [________] Supplemental Indenture.
SECTION 9.3 Governing Law.
-------------
This [________] Supplemental Indenture and each Note shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4 Separability.
------------
In case any one or more of the provisions contained in this
[________] Supplemental Indenture or in the Notes shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
[________] Supplemental Indenture or of the Notes, but this [________]
Supplemental Indenture and the Notes shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
------------
This [________] Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
[Signature Page Follows]
18
IN WITNESS WHEREOF, the parties hereto have caused this [________]
Supplemental Indenture to be duly executed by their authorized respective
officers as of the day and year first above written.
BANK OF AMERICA CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
as Trustee
By _______________________________________
Name:_____________________________________
Title:____________________________________
19