Exhibit 4.3
Bank of America Corporation
Supplementing the
Indenture, dated
as of
January 1, 1995, between
Bank of America Corporation (successor to NationsBank Corporation) and
The Bank of New York Trust Company, N.A. (successor trustee to The Bank of New York,
as successor to U.S. Bank Trust National Association), as Trustee,
as supplemented by a
First Supplemental
Indenture dated as of
August 28, 1998.
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of
January 25, 2007 (the
“Second Supplemental
Indenture”), is made by and between
BANK OF AMERICA CORPORATION, a Delaware Corporation (the
“Company”), and
THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association organized
under the laws of the United States of America and successor trustee to The Bank of New York (the
“Trustee”), under the
Indenture referred to herein.
W I T N E S S E T H:
WHEREAS, pursuant to the
Indenture,
the Company has issued and the Trustee has authenticated
and delivered one or more series of
the Company’s subordinated debt securities (the
“Securities”);
and
WHEREAS, currently, Section 3.02 of the
Indenture requires that
the Company or the Trustee, as
the case may be, provide notice of redemption to the holders of Securities to be redeemed at least
30 and not more than 60 days prior to the date fixed for a redemption;
WHEREAS,
the Company hereafter may be issuing additional series or tranches of Securities
where the terms of those Securities require a period of notice of redemption to the holders of such
Securities shorter than the period currently provided for in the
Indenture;
WHEREAS, Section 10.01(e) of the
Indenture provides that when authorized by a Board
resolution,
the Company and the Trustee may amend the
Indenture without notice to or consent of the
holders of the Securities in order to modify or add to any of the provisions of the
Indenture for
any Securities that are not Outstanding at the time of such change;
WHEREAS, Section 10.01(f) of the
Indenture provides that when authorized by a Board
resolution,
the Company and the Trustee may amend the
Indenture without notice to or consent of the
holders of the Securities in order to cure any ambiguity or to correct or supplement any provision
contained in the
Indenture which may be defective or inconsistent with any other provisions
contained in the
Indenture or to make such other provisions in regard to matters or questions
arising under the
Indenture, provided such other provisions shall not adversely affect in any
material respect the interests of holders of the Securities, including provisions necessary or
desirable to provide for or facilitate the administration of the trusts under the
Indenture;
WHEREAS, pursuant to Section 10.03 of the
Indenture, the Trustee is fully protected in relying
on an Officers Certificate and an Opinion of Counsel as conclusive evidence that this Second
Supplemental
Indenture complies with the provisions of Article
Ten of the
Indenture, and based upon that reliance, the Trustee has agreed to enter into this
Second Supplemental
Indenture; and
WHEREAS, this Second Supplemental
Indenture has been duly authorized by a Board resolution and
all other all necessary corporate action on the part of
the Company.
NOW, THEREFORE,
the Company and the Trustee agree as follows for the equal and ratable benefit
of the holders of the Securities:
ARTICLE I
TERMS OF SECURITIES
SECTION 1.1 Additional Terms of Redemption.
Section 2.03(b) of the
Indenture is hereby amended by:
(a) deleting the word “and” at the end of Subsection 2.03(b)(19);
(b) adding a new Subsection 2.03(b)(20) which shall read as follows:
“(20) any provisions relating to the purchase or redemption of all or
any portion of a tranche or series of Securities, including the period of
notice required to redeem those Securities; and”
(c) renumbering the current Subsection 2.03(b)(20) as “Subsection 2.03(b)(21).”
ARTICLE II
REDEMPTION OF SERIES OF NOTES
DESIGNATED BY OFFICERS OF THE COMPANY
SECTION 2.1 Redeemable Securities. Any Securities eligible for (a) mandatory redemption, (b)
redemption upon the occurrence of an obligation of
the Company to pay Additional Amounts or
otherwise reimburse a holder of Securities for tax withheld from any payments of interest or
principal by
the Company or (c) redemption at the option of
the Company or the holder are
“Redeemable Securities.”
SECTION 2.2 Notice of Redemption. For any tranche or series of Redeemable Securities issued
after the effective date of this Second Supplemental
Indenture, the third sentence of Section 3.02
of the
Indenture hereby is deleted in its entirety, and the following two sentences hereby are
inserted in lieu thereof:
“
The Company or the Trustee, as the case may be, shall give notice of such redemption,
in the manner and to the extent set forth in
Section 15.04, on that date prior to
the date fixed for a redemption to the holders of such Securities so to be redeemed, as a
whole or in part, (a) as set forth in Board Resolutions, as described in
Section
2.03(b), or (b) as determined by the Chief Executive Officer,
the Chief Financial Officer, any Senior or other Vice President or the Treasurer of
the Company (each, an
“Authorized Officer”) and evidenced by the preparation of an offering
document or an Officer’s Certificate specifying the period of notice of such redemption.
If the Board Resolutions or an Authorized Officer do not specify a period of notice of such
redemption,
the Company or the Trustee, as the case may be, shall give notice of such
redemption, in the manner and to the extent set forth in
Section 15.04, at least 10
business days and not more than 60 calendar days prior to the date fixed for a redemption
to the holders of such Securities so to be redeemed as a whole or in part.”
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all
provisions in the
Indenture shall remain in full force and effect.
SECTION 3.3 Confirmation and Preservation of Indenture. The
Indenture as supplemented by
this Second Supplemental
Indenture is in all respects confirmed and preserved.
SECTION 3.4 Conflict with Trust Indenture Act. If any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act (
“TIA”) that
is required under the TIA to be part of and govern any provision of this Second Supplemental
Indenture, the provision of the TIA shall control. If any provision of this Second Supplemental
Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the
provision of the TIA shall be deemed to apply to the
Indenture as so modified or to be excluded by
this Second Supplemental
Indenture, as the case may be.
SECTION 3.5 Severability. In case any provision in this Second Supplemental
Indenture shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 3.6 Terms Defined in the Indenture. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the
Indenture.
SECTION 3.7 Headings. The Article and Section headings of this Second Supplemental
Indenture
have been inserted for convenience of reference only, are not to be considered part of this Second
Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 3.8 Benefits of Second Supplemental Indenture, etc. Nothing in this Second
Supplemental
Indenture or the Securities, express or implied, shall give to any Person, other than
the parties hereto and thereto and their successors hereunder and thereunder and the holders of the
Securities, any benefit of any legal or equitable right, remedy or claim under the
Indenture, this
Second Supplemental
Indenture or the Securities.
SECTION 3.9 Certain Duties and Responsibilities of the Trustees. In entering into this
Second Supplemental
Indenture, the Trustee shall be entitled to the benefit of every provision of
the
Indenture relating to the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
SECTION 3.10 Counterparts. The parties may sign any number of copies of this Second
Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
SECTION 3.11 Governing Law. This Second Supplemental
Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
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