Exhibit 10.1
U NITED S TATES D EPARTMENT OF THE T REASURY
1500 P ENNSYLVANIA A VENUE ,
NW
W ASHINGTON ,
D.C. 20220
Dear Ladies and
Gentlemen:
Reference is made to that certain
Letter Agreement (the “ Letter Agreement ”)
incorporating the Securities Purchase Agreement – Standard
Terms dated as of October 26, 2008 between the United States
Department of the Treasury (“ Investor ”) and
Bank of America Corporation, a Delaware corporation (the “
Company ”). Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Letter
Agreement.
The Investor and the Company intend
to consummate the Additional Purchase on January 9, 2009 and
wish to set forth certain agreements, understandings and amendments
to the Securities Purchase Agreement in connection therewith. In
light of the foregoing, the Investor and the Company hereby agree
that:
(i) The term “ Preferred
Shares ” in the Securities Purchase Agreement shall mean
the 600,000 shares of the Company’s Fixed Rate Cumulative
Perpetual Preferred Stock, Series N set forth on Schedule A to the
Letter Agreement and issued to the Investor on October 28,
2008 and the 400,000 shares of the Company’s Fixed Rate
Cumulative Perpetual Preferred Stock, Series Q to be issued
pursuant to the Additional Purchase.
(ii) The warrant to purchase
73,075,674 shares of the Company’s Common Stock issued to the
Investor on October 28, 2008 shall be cancelled, a new warrant
(the “ New Warrant ”) to purchase 121,792,790
shares of the Company’s Common Stock with an exercise price
of $30.79 and with the amendments set forth in clauses
(a) through (d) below shall be issued to the Investor
upon closing of the Additional Purchase, and such New Warrant shall
be deemed to be the “ Warrant ” for all purposes
under the Securities Purchase Agreement.
Amendments to be included in the New
Warrant:
(a) The definition of “
CPP ” shall be deleted.
(b) The definition of “
Preferred Shares ” shall be amended to read as
follows:
“ Preferred Shares
” means any preferred stock issued by the Company in one or
more series under the Troubled Asset Relief Program.
(c) The third parenthetical in
Section 13(H) shall be amended to read as follows:
“(and any preferred stock
issued by any such successor under the Troubled Asset Relief
Program)”.
(d) The word “civil”
shall be inserted before the word “action” in clause
(a) of Section 16 and before the phrase “legal
action” in the last sentence of Section 16.
(iii) The term “ Initial
Warrant Shares ” in the Securities Purchase Agreement
shall mean the 121,792,790 shares of Common Stock for which the New
Warrant is exercisable.
(iv) The term “ Purchase
Price ” in the Securities Purchase Agreement shall mean
the $15,000,000,000 set forth on Schedule A to the Letter Agreement
and paid by the Investor to the Company on October 28, 2008
and the $10,000,000,000 to be paid in connection with the
consummation of the Additional Purchase.
(v) For purposes of the Additional
Purchase, the definition of “ Signing Date ” in
Section 2.1(a) of the Securities Purchase Agreement shall mean
January 9, 2009.
(vi) For purposes of the Additional
Purchase, the definition of “ Previously Disclosed
” in Section 2.1(b) of the Securities Purchase Agreement
shall be amended to read as follows:
“‘ Previously
Disclosed’ means information set forth or incorporated in
the Company’s or Merrill Lynch & Co., Inc.’s
Annual Report on Form 10-K for the most recently completed fiscal
year of such entity, filed with the Securities and Exchange
Commission (the “SEC”) prior to the Signing Date (the
“Last Fiscal Year”) or in its other reports and forms
filed with or furnished to the SEC under Sections 13(a), 14(a) or
15(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”) on or after the last day of the Last Fiscal Year and
prior to the Closing Date.”
(vii) The definition of “
Qualified Equity Offering ” in Section 4.4 of the
Securities Purchase Agreement shall be amended to read as
follows:
“‘ Qualified Equity
Offering ’ means the sale and issuance for cash by the
Company to persons other than the Company or any of the Company
Subsidiaries after the Closing Date of shares of perpetual
Preferred Stock, Common Stock or any combination of such stock,
that, in each case, qualify as and may be included in Tier 1
capital of the Company at the time of issuance under the applicable
risk-based capital guidelines of the Company’s Appropriate
Federal Banking Agency (other than any such sales and issuances
(i) made by the Company (or any successor by Business
Combination) under the Troubled Asset Relief Program or
(ii) made pursuant to agreements or arrangements entered into,
or pursuant to financing plans which we
