BAC » Topics » FORM OF PERMANENT GLOBAL WARRANT

This excerpt taken from the BAC 10-K filed Feb 27, 2009.

FORM OF PERMANENT GLOBAL WARRANT

THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY INTEREST OR PARTICIPATION IN THIS WARRANT MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OF AMERICA (INCLUDING THE STATES AND THE DISTRICT OF COLUMBIA), ITS TERRITORIES, ITS POSSESSIONS AND OTHER AREAS SUBJECT TO ITS JURISDICTION OR TO ANY PERSON DEEMED A U.S. PERSON UNDER REGULATIONS UNDER THE SECURITIES ACT. THIS WARRANT MAY NOT BE LEGALLY OR BENEFICIALLY OWNED AT ANY TIME BY ANY U.S. PERSON.

THIS WARRANT IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE ISSUER AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.

B OF A ISSUANCE B.V.

WARRANTS

PERMANENT GLOBAL WARRANT

 

COMMON CODE:     ISIN:

This Global Warrant is a Permanent Global Warrant in bearer form in respect of a duly authorized Series of Warrants (the “Warrants”) of B of A Issuance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands with its corporate seat in Amsterdam, The Netherlands (the “Issuer”) described, and having the provisions specified, in the applicable Final Terms (the “Final Terms”), which provisions are incorporated herein. References herein to the General Instrument Conditions shall be to the Terms and Conditions of the Instruments as set out in Schedule 12-2 to the Agency Agreement (as defined below) as modified and supplemented by the information set out in the Final Terms and which are incorporated herein by reference, but in the event of any conflict between the provisions of those Schedules and the information set out in the Final Terms, the Final Terms will prevail.

Words and expressions defined or set out in the General Instrument Conditions and/or the Final Terms shall bear the same meaning when used herein.

This Global Warrant is issued subject to, and with the benefit of, the General Instrument Conditions and an Amended and Restated Agency Agreement (the “Agency Agreement,” which expression shall be construed as a reference to that agreement as the same may be amended or supplemented from time to time) dated as of [•] 2008 and made among B of A Issuance B.V., as Issuer, Bank of America Corporation (the “Guarantor”), The Bank of New York Mellon (the “Agent”), The Bank of New York (Luxembourg) S.A., and the other agents named therein.

For value received, the Issuer, subject to the exercise of this Global Warrant pursuant to an Exercise Notice as set out in Schedule 18 to the Agency Agreement and in accordance with the General Instrument Conditions, promises to pay to the bearer hereof on the Settlement Date, the amount payable or deliverable, as the case may be, on the exercise of such Warrants then represented by this Global Warrant, and to pay such amount or to deliver any Physical Delivery Amount (if any) on the Warrants from time to time represented by this Global Warrant calculated and payable as provided in the General Instrument Conditions together with any other sums payable under the

 

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General Instrument Conditions, upon presentation or following the delivery of an exercise notice as provided in the Agency Agreement.

Payment hereunder is guaranteed by the Guarantor, as set forth in the Senior Guarantee Agreement executed by the Guarantor on January 16, 2007.

The number of the Warrants represented by this Global Warrant shall be the number stated in the applicable Final Terms or, if lower, the number most recently envisaged by or on behalf of the Issuer, in the relevant column in Part I or II of Schedule 1 or in Schedule 2.

On any exercise or purchase and cancellation of, any of the Warrants represented by this Global Warrant, the Issuer shall procure that details of such exercise, payment or purchase and cancellation (as the case may be) shall be entered in the relevant column in Part I or II of Schedule 1 or in Schedule 2 hereto recording any such exercise, payment or purchase and cancellation (as the case may be) and shall be signed by or on behalf of the Issuer. Upon any such exercise or purchase and cancellation, the number of such Warrants represented by this Global Warrant shall be reduced by the number of the Warrants so exercised or purchased and cancelled.

This Global Warrant may be exchanged in whole, but not in part (free of charge), for security-printed Definitive Warrants, in the circumstances provided for in the General Instrument Conditions. Subject as aforesaid, this exchange will be made upon presentation of this Global Warrant by the bearer hereof on any day (other than a Saturday or Sunday) on which banks are open for business in London at the office of the Agent specified above. The aggregate number of Definitive Warrants issued upon an exchange of this Global Warrant will be equal to the aggregate number of Warrants represented by this Global Warrant submitted by the bearer hereof for exchange (to the extent that such number does not exceed the aggregate number of Warrants represented by this Global Warrant most recently entered in the relevant column in Part I or II of Schedule 1 or in Schedule 2 hereto), provided that, subject as aforesaid, the first notice given to the Agent by Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) shall give rise to the issue of Definitive Warrants in exchange for the total number of the Warrants represented by this Global Warrant.

On an exchange of the whole of this Global Warrant, this Global Warrant shall be surrendered to the Agent.

Until the exchange of the whole of this Global Warrant as aforesaid, the bearer hereof in all respects shall be entitled to the same benefits as if such bearer were the bearer of a Definitive Warrant.

Notwithstanding any provision to the contrary contained in this Permanent Global Warrant, the Holder of this Permanent Global Warrant shall be the only person entitled to receive payments in respect to the Warrants represented by this Permanent Global Warrant and the Issuer will be discharged by payment to, or to the order of, the Holder of this Permanent Global Warrant in respect of each amount so paid. Any failure to make the entries referred to in above shall not affect such discharge. Each of the persons shown in the records of Euroclear or Clearstream, Luxembourg as the beneficial holder of a particular number of Warrants represented by this Permanent Global Warrant must look solely to Euroclear or Clearstream, Luxembourg, as the case may be, for his share of each payment so made by the Issuer to, or to the order of, the Holder of this Permanent Global Warrant. No person other than the Holder of this Permanent Global Warrant shall have any claim against the Issuer in respect of any payments or deliveries due on this Permanent Global Warrant.

This Permanent Global Warrant shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America, without regard to principles of conflicts of laws.

This Permanent Global Warrant shall not become valid or obligatory for any purpose until the certificate of authentication hereon shall have been duly signed by or on behalf of the Agent acting in accordance with the Agency Agreement.

 

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IN WITNESS WHEREOF the Issuer has caused this Permanent Global Warrant to be duly signed on its behalf.

 

B OF A ISSUANCE B.V.
By:  

 

Managing Director A
By:  

 

Managing Director B

[CERTIFICATE OF AUTHENTICATION OF THE AGENT]

This Permanent Global Warrant is authenticated by or on behalf of the Agent.

 

THE BANK OF NEW YORK MELLON
as Agent
By:  

 

  Authorized Signatory
  For the purposes of authentication only.

 

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Schedule 1 to the

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