EX-4.25









Exhibit 4.25




 





ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT




by and among




BANK OF AMERICA CORPORATION,




MERRILL LYNCH & CO., INC.,




and




THE BANK OF NEW YORK MELLON, as Depositary




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 1
	 	ASSIGNMENT AND ASSUMPTION

	 	 	2	 
	 	 	Section 1.1 Assignment

	 	 	2	 
	 	 	Section 1.2 Assumption

	 	 	2	 
	 	 	 
	 	 	 	 
	ARTICLE 2
	 	AMENDMENTS

	 	 	3	 
	 	 	Section 2.1 New Deposited Securities

	 	 	3	 
	 	 	Section 2.2 Certain Amendments

	 	 	3	 
	 	 	Section 2.3 No Further Amendment

	 	 	4	 
	 	 	Section 2.4 No Holder Approval

	 	 	4	 
	 	 	 
	 	 	 	 
	ARTICLE 3
	 	NEW DEPOSITARY RECEIPTS

	 	 	5	 
	 	 	Section 3.1 Execution, Delivery and Exchange of Depositary Receipts

	 	 	5	 
	 	 	 
	 	 	 	 
	ARTICLE 4
	 	CONDITIONS

	 	 	5	 
	 	 	Section 4.1 Conditions to the Assignment, Assumption and Amendment

	 	 	5	 
	 	 	 
	 	 	 	 
	ARTICLE 5
	 	TERMINATION

	 	 	5	 
	 	 	Section 5.1 Termination

	 	 	5	 
	 	 	Section 5.2 Effect of Termination

	 	 	5	 
	 	 	 
	 	 	 	 
	ARTICLE 6
	 	GENERAL PROVISIONS

	 	 	5	 
	 	 	Section 6.1 Successors; Binding Effect; Benefit

	 	 	5	 
	 	 	Section 6.2 Entire Agreement

	 	 	5	 
	 	 	Section 6.3 Notices

	 	 	5	 
	 	 	Section 6.4 Governing Law

	 	 	6	 
	 	 	Section 6.5 Counterparts

	 	 	6	 
	 	 	Section 6.6 Headings

	 	 	6	 
	 	 	Section 6.7 Severability

	 	 	6	 







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AGREEMENT




     THIS ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”) dated as of December
31, 2008 is by and among Bank of America Corporation, a Delaware corporation (“Parent”), Merrill
Lynch & Co., Inc., a Delaware corporation (the “Company”) and The Bank of New York Mellon, a New
York banking corporation, as depositary (the “Depositary”).



RECITALS




     WHEREAS, the Company currently has the following series of preferred stock issued and
outstanding: (a) Floating Rate Non-Cumulative Preferred Stock, Series 1, par value $1.00 per share
(the “Merrill Lynch Series 1 Preferred Stock”), (b) Floating Rate Non-Cumulative Preferred Stock,
Series 2, par value $1.00 per share (the “Merrill Lynch Series 2 Preferred Stock”), (c) 6.375%
Non-Cumulative Preferred Stock, Series 3, par value $1.00 per share (the “Merrill Lynch Series 3
Preferred Stock”), (d) Floating Rate Non-Cumulative Preferred Stock, Series 4, par value $1.00 per
share (the “Merrill Lynch Series 4 Preferred Stock”), (e) Floating Rate Non- Cumulative Preferred
Stock, Series 5, par value $1.00 per share (the “Merrill Lynch Series 5 Preferred Stock”), and (f)
8.625% Non-Cumulative Preferred Stock, Series 8, par value $1.00 per share (the “Merrill Lynch
Series 8 Preferred Stock”) (collectively, the “Preferred Stock”);



     WHEREAS, the Company has previously executed the following deposit agreements, which
agreements remain in full force and effect: (i) Deposit Agreement, dated as of November 1, 2004,
among the Company, JPMorgan Chase Bank, as depositary, and the holders from time to time of the
Receipts (relating to the Merrill Lynch Series 1 Preferred Stock), (ii) Deposit Agreement, dated as
of March 14, 2005, among the Company, JPMorgan Chase Bank, N.A., as depositary, and the holders
from time to time of Receipts (relating to the Merrill Lynch Series 2 Preferred Stock), (iii)
Deposit Agreement, dated as of November 17, 2005, among the Company, JPMorgan Chase Bank, N.A., as
depositary, and the holders from time to time of the Receipts (relating to the Merrill Lynch Series
3 Preferred Stock), (iv) Deposit Agreement, dated as of November 17, 2005, among the Company,
JPMorgan Chase Bank, N.A., as depositary, and the holders from time to time of the Receipts
(relating to the Merrill Lynch Series 4 Preferred Stock), (v) Deposit Agreement, dated as of March
20, 2007, among the Company, The Bank of New York, as depositary, and the holders from time to time
of the Receipts (relating to the Merrill Lynch Series 5 Preferred Stock), and (vi) Deposit
Agreement, dated as of April 29, 2008, among the Company, The Bank of New York, as depositary, and
the holders from time to time of the Receipts (relating to the Merrill Lynch Series 8 Preferred
Stock) (each, a “Deposit Agreement,” and collectively, the “Deposit Agreements”);



     WHEREAS, the Depositary is the successor depositary to JPMorgan Chase Bank, N.A. and The Bank
of New York;



     WHEREAS, Parent, the Company and MER Merger Corporation, a Delaware corporation and wholly
owned subsidiary of Parent (“Merger Sub”), executed an Agreement and Plan of Merger, dated as of
September 15, 2008, as amended by Amendment No. 1, dated October 21, 2008, pursuant to which, at
the effective time of the merger, Merger Sub would



 









 







merge with and into the Company (the “Merger”), with the Company surviving the Merger and with
each outstanding share of Preferred Stock being converted into a share of preferred stock of Parent
with substantially identical terms as the Preferred Stock (the “BAC Mirror Preferred Stock”);



     WHEREAS, upon consummation of the Merger, the Company desires to assign, and Parent desires to
assume, the Company’s obligations under the Deposit Agreements;



     WHEREAS, pursuant to Section 4.06 of the Deposit Agreements, upon a merger to which the
Company is a party, the Depositary shall upon instructions of the Company treat any securities that
shall be received by the Depositary in exchange for or upon conversion of or in respect of the
Preferred Stock as new deposited securities so received in exchange for or upon conversion or in
respect of such Preferred Stock; and



     WHEREAS, upon consummation of the Merger, Parent, pursuant to Section 4.06 of the Deposit
Agreements, desires to have the Depositary treat the BAC Mirror Preferred Stock, which shall be
received by the Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock, as new deposited securities so received in exchange for or upon conversion or in respect of
such Preferred Stock.



     NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained herein,
the parties hereto hereby agree as follows:



ARTICLE 1




ASSIGNMENT AND ASSUMPTION




     Section 1.1 Assignment.



     Upon consummation of the Merger, the Company does hereby assign, transfer, convey and deliver
unto Parent, its successors and assigns, all of its rights, interests and obligations under the
Deposit Agreements.



     Section 1.2 Assumption.



     Upon consummation of the Merger, Parent hereby accepts such assignment of the Company’s
rights, interests and obligations under the Deposit Agreements and agrees to assume and be liable
for, and shall perform and discharge, all of the obligations of the Company under the Deposit
Agreements. The Depositary hereby acknowledges and accepts the assignment of the Company’s rights,
interests and obligations under the Deposit Agreements to Parent and hereby agrees to recognize
Parent as the assignee of the Company’s obligations under the Deposit Agreements and release the
Company of its obligations under the Deposit Agreements.



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ARTICLE 2




AMENDMENTS




     Section 2.1 New Deposited Securities.



     Pursuant to Section 4.06 of the Deposit Agreements, the Company and Parent hereby instruct the
Depositary and the Depositary hereby agrees to treat the BAC Mirror Preferred Stock, which shall be
received by the Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock following consummation of the Merger, as new deposited securities so received in exchange for
or upon conversion or in respect of such Preferred Stock.



     Section 2.2 Certain Amendments.



     The parties hereto agree that the Deposit Agreements shall remain in full force and effect
following consummation of the Merger, except as modified as follows:



     (a) Any reference to “Company” in the Deposit Agreements shall mean Bank of America
Corporation, a Delaware corporation having its principal office at 100 N. Tyron Street, Charlotte,
North Carolina 29255, and its successors.



     (b) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch Series
1 Preferred Stock shall mean shares of Bank of America Corporation’s Floating Rate Non-Cumulative
Preferred Stock, Series 1, par value $0.01 per share.



     (c) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch Series
2 Preferred Stock shall mean shares of Bank of America Corporation’s Floating Rate Non-Cumulative
Preferred Stock, Series 2, par value $0.01 per share.



     (d) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch’s
Series 3 Preferred Stock shall mean shares of Bank of America Corporation’s 6.375% Non-Cumulative
Preferred Stock, Series 3, par value $0.01 per share.



     (e) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch’s
Series 4 Preferred Stock shall mean shares of Bank of America Corporation’s Floating Rate
Non-Cumulative Preferred Stock, Series 4, par value $0.01 per share.



     (f) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch’s
Series 5 Preferred Stock shall mean shares of Bank of America Corporation’s Floating Rate
Non-Cumulative Preferred Stock, Series 5, par value $0.01 per share.



     (g) Any reference to “Stock” in the Deposit Agreement with respect to the Merrill Lynch’s
Series 8 Preferred Stock shall mean shares of Bank of America Corporation’s 8.625% Non-Cumulative
Preferred Stock, Series 8, par value $0.01 per share.



     (h) Any reference to “Certificate” in the Deposit Agreements shall mean the Certificate of
Designations filed with the Secretary of State of Delaware establishing the respective series of
Stock as a series of preferred stock of Parent.



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     (i) Any reference to “Restated Certificate of Incorporation” in the Deposit Agreements shall
mean the Amended and Restated Certificate of Incorporation, as amended from time to time, of
Parent.



     (j) The address and facsimile number to which notices to the Company shall be delivered
pursuant to Section 7.04 of the Deposit Agreements shall be replaced with the following:


Bank of America Corporation

Bank of America Corporate Center

100 North Tryon Street

Charlotte, NC 28255

Attention: Teresa M. Brenner

                  Associate General Counsel

Facsimile No.: (704) 386-1670




     (k) The address and facsimile number to which notices to the Depositary shall be delivered
pursuant to Section 7.04 of the Deposit Agreements shall be replaced with the following:


The Bank of New York Mellon

101 Barclay Street — Floor 8W

New York, New York 10286

Attn: Global Trust Administration

Facsimile No.: (212) 815-5704




     (l) Exhibit A to each of the Deposit Agreements, which sets forth the form of Receipt (as set
forth and defined in the Deposit Agreements), shall be replaced with the respective form of
depositary receipt attached to this Agreement.



     Section 2.3 No Further Amendment. Except as expressly amended hereby, the Deposit
Agreements are in all respects ratified and confirmed and all the terms, conditions, and provisions
thereof shall remain in full force and effect. The amendments contained in Section 2.2 of this
Agreement are limited as written and shall not be deemed to be an amendment to any other term or
condition of the Deposit Agreements or any of the documents referred to therein.



     Section 2.4 No Holder Approval. The Company and Parent hereby certifies to the
Depositary that this Agreement does not materially and adversely alter the rights of the holders of
the depositary receipts and that no approval of the holders is required under Section 6.01 of the
Deposit Agreements.




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ARTICLE 3




NEW DEPOSITARY RECEIPTS




     Section 3.1 Execution, Delivery and Exchange of Depositary Receipts. The Depositary
shall, upon the written order of Parent and subject to the terms and conditions of the
 Deposit Agreements, execute and deliver Receipts evidencing each series of BAC Mirror
Preferred Stock (collectively, the “New Depositary Receipts”). The Depositary further agrees to
take any actions reasonably requested by Parent that are necessary to effect an exchange of the
existing depositary receipts for the New Depositary Receipts. For the avoidance of doubt,
reasonable out-of-pocket expenses incurred pursuant to the execution, delivery and exchange of the
depositary receipts are subject to reimbursement pursuant to the terms of Section 5.07 of the
Deposit Agreements.



ARTICLE 4




CONDITIONS




     Section 4.1 Conditions to the Assignment, Assumption and Amendment. The provisions
contained in Articles I and II of this Agreement shall become effective only upon consummation of
the Merger, notice of which shall be given to the Depositary by Parent.



ARTICLE 5




TERMINATION




     Section 5.1 Termination. This Agreement may be terminated by Parent at any time prior
to the Merger.



     Section 5.2 Effect of Termination. In the event of termination of this Agreement, as
provided in Section 5.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of the parties hereto, other than the provisions of this
Section 5.2 and Article 6.



ARTICLE 6




GENERAL PROVISIONS




     Section 6.1 Successors; Binding Effect; Benefit. This Agreement is for the exclusive
benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed
to give any legal or equitable right, remedy or claim to any other person whatsoever.



     Section 6.2 Entire Agreement. This Agreement and any documents delivered by the
parties in connection herewith constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings among the parties
with respect thereto. No addition to or modification of any provision of this Agreement shall be
binding upon any party hereto unless made in writing and signed by the parties hereto.



     Section 6.3 Notices. Any and all notices to be given to the Depositary under this
Agreement shall be in writing and shall be deemed to have been duly given if personally delivered
or sent by mail, or facsimile transmission confirmed by letter, addressed to the Depositary at:



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The Bank of New York Mellon

101 Barclay Street — Floor 8W

New York, New York 10286

Attn: Global Trust Administration

Facsimile No.: (212) 815-5704




     Section 6.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its rules of conflict of laws.



     Section 6.5 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together signed by all of
the parties hereto.



     Section 6.6 Headings. Headings of the Articles and Sections of this Agreement have
been inserted for convenience only and are not to be regarded as a part of this Agreement or to
have any bearing upon the meaning or interpretation of any provision contained herein.



     Section 6.7 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so broadly as is
enforceable.



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     IN WITNESS WHEREOF, the parties have executed this Agreement and caused the same to be duly
delivered on their behalf as the date first indicated above.



	 	 	 	 	 
	 	BANK OF AMERICA CORPORATION

 	 
	 	By:  	
 /s/ Teresa M. Brenner	 
	 	 	Name:  	 Teresa M. Brenner	 
	 	 	Title:  	 Associate General Counsel	 
	 



	 	 	 	 	 
	 	MERRILL LYNCH & CO., INC.

 	 
	 	By:  	
 /s/ Marlene Debel	 
	 	 	Name:  	 Marlene Debel	 
	 	 	Title:  	 Assistant Treasurer	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON, as Depositary

 	 
	 	By:  	
 /s/ Rafael E. Miranda	 
	 	 	Authorized Officer