Exhibit 4.15

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[                    ] SUPPLEMENTAL INDENTURE

 

between

 

BANK OF AMERICA CORPORATION

 

and

 

THE BANK OF NEW YORK

 

Dated as of [                    ,             ]

 

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TABLE OF CONTENTS

 

				Page
ARTICLE 1		DEFINITIONS		2
SECTION 1.1		Definition of Terms		2
ARTICLE 2		GENERAL TERMS AND CONDITIONS OF THE NOTES		4
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		7
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		8
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		9
SECTION 5.1		Payment of Expenses		9
SECTION 5.2		Payment Upon Resignation or Removal		10
ARTICLE 6		COVENANT TO LIST ON EXCHANGE		10
SECTION 6.1		Listing on an Exchange		10
ARTICLE 7		FORM OF NOTE		11
SECTION 7.1		Form of Note		11
ARTICLE 8		ORIGINAL ISSUE OF NOTES		17
SECTION 8.1		Original Issue of Notes		17
ARTICLE 9		MISCELLANEOUS		18
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
ARTICLE 10		MATURITY DATE EXTENSION		19
SECTION 10.1		Extension		19
SECTION 10.2		Notice of Extension		19

 

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[            ] 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 a Restated Indenture dated as of November 1, 2001 between the Company and the Trustee (the “Indenture”).

 

WHEREAS, the Company desires to establish, under the terms of the Indenture, a series of its securities to be known as its [    ]% Junior Subordinated 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 [                    ,             ] (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 has granted the Underwriters an option to purchase up to an additional $[            ] aggregate liquidation amount of Capital Securities of the Trust (the “Option”) to cover over-allotments]; and

 

WHEREAS, under the terms of a Subscription Agreement dated as of [                    ,             ] 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 shall represent at least 3% of the total 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 of the Common Securities, in the Notes, as a result of which the Trust will purchase [initially] $[                    ] aggregate principal amount of the Notes[, and may, upon exercise of the Option purchase up to an additional $[                    ] 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,

 

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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) Capital Security Certificate; (v) Depositary; (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.

 

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“Declaration” means the Amended and Restated Declaration of Trust of BAC Capital Trust [            ], a Delaware statutory trust, dated as of [                    ,             ].

 

“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.

 

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“Special Event Prepayment” means a prepayment of the Notes prior to [                    ,             ], in whole but not in part, pursuant to the occurrence of a Special Event.

 

“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 Notes, due [            ]” limited in aggregate principal amount to no more than $[                    ] which amount shall be as set forth in one or more written orders of the Company for the authentication and delivery of the Notes pursuant to Section 2.04 of the Indenture [including any subsequent or supplemental written order of the Company upon exercise of the Option].

 

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

 

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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, 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 to 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 applicab