EX-4.26









Exhibit 4.26




 





ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT




by and among




BANK OF AMERICA CORPORATION,


MERRILL LYNCH & CO., INC.,


and


MELLON INVESTOR SERVICES LLC, 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

	 	 	2	 
	 	 	Section 2.1 New Deposited Securities

	 	 	2	 
	 	 	Section 2.2 Certain Amendments

	 	 	2	 
	 	 	Section 2.3 No Further Amendment

	 	 	3	 
	 	 	Section 2.4 No Holder Approval

	 	 	3	 
	 	 	 
	 	 	 	 
	ARTICLE 3
	 	NEW DEPOSITARY RECEIPTS

	 	 	4	 
	 	 	Section 3.1 Execution, Delivery and Exchange of Depositary Receipts

	 	 	4	 
	 	 	 
	 	 	 	 
	ARTICLE 4
	 	CONDITIONS

	 	 	4	 
	 	 	Section 4.1 Conditions to the Assignment, Assumption and Amendment

	 	 	4	 
	 	 	 
	 	 	 	 
	ARTICLE 5
	 	TERMINATION

	 	 	4	 
	 	 	Section 5.1 Termination

	 	 	4	 
	 	 	Section 5.2 Effect of Termination

	 	 	4	 
	 	 	 
	 	 	 	 
	ARTICLE 6
	 	GENERAL PROVISIONS

	 	 	4	 
	 	 	Section 6.1 Successors; Binding Effect; Benefit

	 	 	4	 
	 	 	Section 6.2 Entire Agreement

	 	 	5	 
	 	 	Section 6.3 Notices

	 	 	5	 
	 	 	Section 6.4 Governing Law

	 	 	5	 
	 	 	Section 6.5 Counterparts

	 	 	5	 
	 	 	Section 6.6 Headings

	 	 	5	 
	 	 	Section 6.7 Severability

	 	 	5	 







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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 Mellon Investor Services LLC, a New
Jersey limited liability company, as depositary (the “Depositary”).



RECITALS




     WHEREAS, the Company currently has the following series of preferred stock issued and
outstanding: (a) 6.70% Noncumulative Perpetual Preferred Stock, Series 6, par value $1.00 per share
(the “Merrill Lynch Series 6 Preferred Stock”) and (b) 6.25% Noncumulative Perpetual Preferred
Stock, Series 7, par value $1.00 per share (the “Merrill Lynch Series 7 Preferred Stock”)
(collectively, the “Preferred Stock”);



     WHEREAS, the Company has previously assumed all of First Republic Bank’s obligations, rights
and interests under the following deposit agreements, which agreements remain in full force and
effect: (i) Deposit Agreement, dated as of January 28, 2004, among First Republic Bank, the
Depositary and the holders from time to time of the Receipts (relating to the Merrill Lynch Series
6 Preferred Stock) and (ii) Deposit Agreement, dated as of March 18, 2005, among First Republic
Bank, the Depositary and the holders from time to time of the Receipts (relating to the Merrill
Lynch Series 7 Preferred Stock) (each, a “Deposit Agreement,” collectively, the “Deposit
Agreements”);



     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 4.6 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 4.6 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.



ARTICLE 2




AMENDMENTS




     Section 2.1 New Deposited Securities.



     Pursuant to Section 4.6 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 “Bank” 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 “Preferred Shares” in the Deposit Agreement with respect to the Merrill
Lynch Series 6 Preferred Stock shall mean shares of Bank of America Corporation’s 6.70%
Noncumulative Perpetual Preferred Stock, Series 6, par value $0.01 per share.



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     (c) Any reference to “Preferred Shares” in the Deposit Agreement with respect to the Merrill
Lynch Series 7 Preferred Stock shall mean shares of Bank of America Corporation’s 6.25%
Noncumulative Perpetual Preferred Stock, Series 7, par value $0.01 per share.



     (d) Any reference to “certificate of designations” 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.



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



     (f) The address and facsimile number to which notices to the Company shall be delivered
pursuant to Section 7.4 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




     (g) The address and facsimile number to which notices to the Depositary shall be delivered
pursuant to Section 7.4 of the Deposit Agreements shall be replaced with the following:


Mellon Investor Services LLC

525 Market Street, Suite 3500

San Francisco, CA 94105

Attention: Relationship Management

Facsimile: (415) 951-4186




     (h) 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



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holders of the depositary receipts and that no approval of the holders is required under
Section 6.1 of the Deposit Agreements. The Company and Parent further represent that the
amendments contained in Section 2.2 are in compliance with the terms of Section 6.1 of the Deposit
Agreements.



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 5.7 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.



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     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 transmissions confirmed by letter, addressed to the Depositary at:


Mellon Investor Services LLC

525 Market Street, Suite 3500

San Francisco, CA 94105

Attention: Relationship Management

Facsimile: (415) 951-4186




     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 of 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	 
	 



	 	 	 	 	 
	 	MELLON INVESTOR SERVICES LLC, as Depositary

 	 
	 	By:  	/s/ Sharon Magidson	 
	 	 	Authorized Officer