Contract
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF BANK OF AMERICA CORPORATION AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED €1,500,000,000
NUMBER R-1
ISIN No. XS0178866736
Common Code: 00000000
BANK OF AMERICA CORPORATION
4¼% SENIOR NOTE, DUE 2010
BANK OF AMERICA CORPORATION,
a Delaware corporation (herein called the "Corporation," which term includes
any successor corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to The Bank of New
York Depository (Nominees) Limited, or registered assigns, the principal
sum of ONE BILLION FIVE HUNDRED MILLION EUROS (€1,500,000,000)
on October 21, 2010 and to pay interest on said principal sum, annually
in arrears on October 21 of each year, at the rate of 4¼% per annum,
commencing October 21, 2004, or unless no interest has been paid on the
Notes, in which case from October 21, 2003, until payment of such principal
sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after a record date for the Notes, (which shall be
the close of business on the September 30th preceding an interest
payment date), this Note shall bear interest from such interest payment
date; provided, however, that if the Corporation shall default in the payment
of interest due on such interest payment date, then this Note shall bear
interest from the next preceding interest payment date to which interest
has been paid, or, if no interest has been paid on the Notes, from October
21, 2003. Interest on this Note will accrue from the original issue date
specified above until the principal amount is paid and will be computed
on the basis of the actual number of days in the interest period and the
actual number of days in the calendar year. Interest payments will equal
the amount of interest accrued from, and including, the preceding interest
payment date in respect of which interest has been paid or duly provided
for (or from, and including, the original issue date specified above, if
no interest has been paid or duly provided for) to, but excluding, the
interest payment date or the maturity date, as the case may be. If the
maturity date or an interest payment date falls on a day which is not a
Business Day as defined below, principal of or interest payable with respect
to such maturity date or interest payment date will be paid on the succeeding
Business Day with the same force and effect as if made on such maturity
date or interest payment date, as the case may be. The interest so payable,
and punctually paid or duly provided for, on any interest payment date,
as provided in such Indenture, will be paid to the person in whose name
this Note (or one or
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more predecessor Notes evidencing all or a portion of the same debt as this Note) is registered at the close of business on the record date for such interest payment date.
The principal of and interest on this Note are payable in immediately available funds in such coin or currency of the European Union as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Corporation in London or such other places that the Corporation shall designate as provided in such Indenture; provided, however, that interest may be paid, at the option of the Corporation, by check mailed to the person entitled thereto at his address last appearing on the registry books of the Corporation relating to the Notes. Notwithstanding the preceding sentence, payments of principal of and interest payable on the maturity date will be made by wire transfer of immediately available funds to a designated account maintained in London upon (i) receipt of written notice by the Issuing and Paying Agent (as described on the reverse hereof) from the registered holder hereof not less than one Business Day prior to the due date of such principal and (ii) presentation of this Note to the Issuing and Paying Agent, at The Bank of New York, 48th Floor, One Canada Square, London, E14 5AL. Any interest not punctually paid or duly provided for shall be payable as provided in such Indenture. As used herein, "Business Day" means any weekday that (i) is not a legal holiday in New York, New York, Charlotte, North Carolina or Luxembourg, (ii) is not a day on which banking institutions in those cities are authorized or required by law or regulation to be closed, and (iii) is a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer ("TARGET") System or any successor system is open for business.
If the euro is not available to the Corporation due to circumstances beyond the control of the Corporation (such as the imposition of exchange controls or a disruption in the currency markets), the Corporation is entitled to satisfy its obligation to make the payments in euro by instead making the payment in U.S. dollars on the basis of the exchange rate determined by the exchange rate agent in its sole discretion.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place.
Unless the certificate of authentication
hereon has been executed by the Trustee or by an authenticating agent on
behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Corporation has caused this Instrument to be duly executed, by manual or facsimile signature, under its corporate seal or a facsimile thereof.
BANK OF AMERICA CORPORATION
By: _______________________________
[SEAL]
Title: Senior Vice President
ATTEST:
By:______________________
Assistant Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: October 21, 2003
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Authorized Signatory
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[Reverse of Note]
BANK OF AMERICA CORPORATION
4¼% SENIOR NOTE, DUE 2010
This Note is one of a duly authorized series of Securities of the Corporation unlimited in aggregate principal amount issued and to be issued under an Indenture dated as of January 1, 1995 (herein called the "Indenture"), between the Corporation (successor to NationsBank Corporation) and The Bank of New York, as Trustee (successor in interest to U.S. Bank Trust National Association, as successor trustee to BankAmerica National Trust Company, herein called the "Trustee," which term includes any successor trustee under the Indenture), as supplemented by a First Supplemental Indenture dated as of September 18, 1998 and a Second Supplemental Indenture dated as of May 7, 2001, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Corporation, the Trustee and the holders of the Notes, and the terms upon which the Notes are, and are to be, authenticated and delivered. The series of which this Note is a part also is designated as the Corporation's 4¼% Senior Notes, due 2010 (herein called the "Notes"), initially in the principal amount of €1,500,000,000 . The amount of Notes of this series may be increased by the Corporation in the future. The Trustee initially shall act as Security Registrar and Authenticating and Issuing and Paying Agent in connection with the Notes.
This Note is not subject to any sinking fund.
Except in those situations in which the Corporation may become obligated to pay additional amounts (as described herein), the Notes of this series are not subject to redemption at the option of the Corporation or repayment at the option of the holder prior to maturity.
The provisions of Article Fourteen of the Indenture apply to Securities of this Series.
Subject to the exemptions and limitations set forth below, the Corporation will pay additional amounts to the beneficial owner of this Note that is a non-United States person in order to ensure that every net payment on such Note will not be less, due to payment of United States withholding tax, than the amount then due and payable. For this purpose, a "net payment" on the Note means a payment by the Corporation or any paying agent, including payment of principal and interest, after deduction for any present or future tax, assessment or other governmental charge of the United States. These additional amounts will constitute additional interest on the Note.
The Corporation will not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (13) below.
(1) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note:
(a) having a relationship with the United States as a citizen, resident,
or otherwise;
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(b) having had such a relationship in the past; or
(c) being considered as having had such a relationship.
(2) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) foreign private foundation or other foreign tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid U.S. federal income tax.
(4) Additional
amounts will not be payable if a payment on the Note is reduced as a result
of any tax, assessment, or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner of the Note owning or
having owned, actually or constructively, 10% or more of the total combined
voting power of all classes of the Corporation's stock entitled to vote;
(5) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of the Note being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business.
For purposes
of items (1) through (5) above, "beneficial owner" includes a fiduciary,
settlor, partner, member, shareholder, or beneficiary of the holder if
the holder is an estate, trust, partnership, limited liability company,
corporation, or other entity, or a person holding a power over an estate
or trust administered by a fiduciary holder.
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(6) Additional amounts will not be payable to any beneficial owner of the Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of the Note, or any portion of the Note.
However, this exception to the obligation to pay additional amounts will apply only to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner, or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, partner, beneficial owner, or member received directly its beneficial or distributive share of the payment.(7) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld by reason of the failure of the beneficial owner of the Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts will apply only if compliance with such reporting requirements is required as a precondition to exemption from such tax, assessment, or other governmental charge by statute or regulation of the United States or by an applicable income tax treaty to which the United States is a party.
(8) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is collected or imposed by any method other than by withholding from a payment on the Note by the Corporation or any paying agent.
(9) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld by reason of the presentation by the beneficial owner of the Note for payment more than 30 days after the date on which such payment becomes due or is duly provided for, whichever occurs later.
(11) Additional amounts will
not be payable if a payment on the Note is reduced as result of any:
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(a) estate tax;
(b) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any similar tax, assessment, or other governmental charge.
(12) Additional amounts will not be payable if a payment on the Note is reduced as a result of any tax, assessment, or other governmental charge required to be withheld by any paying agent from a payment of principal or interest on the Note if such payment can be made without such withholding by any other paying agent.
(13) Additional amounts will not be payable if a payment on the Note is reduced as a result of any combination of items (1) through (12) above.
The Notes of this series may be redeemed at the option of the Corporation in whole, but not in part, at any time, on giving not less than 30 nor more than 60 days' notice to the Trustee and the holders of the Notes, if the Corporation has or may become obliged to pay additional amounts as a result of any change in, or amendment to, the laws or regulations of the United States or any political subdivision or any authority thereof or therein having power to tax, or any change in the application or official interpretation of such laws or regulations after the date of this Note.
Prior to the publication of any notice of redemption, the Corporation shall deliver to the Trustee a certificate signed by the Chief Financial Officer or a Senior Vice President of the Corporation stating that the Corporation is entitled to effect such redemption and setting forth a statement of facts showing the conditions precedent to the right to redeem.
Notes so redeemed will be redeemed at 100% of their principal amount together with interest accrued up to (but excluding) the date of redemption.
As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this
Note may be registered on the Security Register or registry books of the
Corporation relating to the Notes, upon surrender of this Note for registration
of transfer at the office or agency of the Corporation designated by it
pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the
Trustee or the Security Registrar duly executed by the registered holder
hereof or his attorney
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duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge will be made for any such registration of transfer or exchange, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the Corporation, the Trustee, the Issuing and Paying Agent, and any agent of the Corporation may treat the person in whose name this Note is registered as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Corporation, the Trustee, the Issuing and Paying Agent nor any such agent of the Corporation shall be affected by notice to the contrary.
The Notes are issuable only as registered Notes without coupons in denominations of €1,000 and any integral multiple in excess thereof. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the holder surrendering the same.
If an Event of Default (defined in the Indenture as (i) the Corporation's failure to pay the principal of (or premium, if any, on) any Notes when due, or to pay interest on the Notes within 30 days after the same becomes due, (ii) the Corporation's breach of its other covenants contained in this Note or in the Indenture, which breach is not cured within 90 days after written notice by the Trustee or the holders of at least 25% in outstanding principal amount of all Securities issued under the Indenture and affected thereby, and (iii) certain events involving the bankruptcy, insolvency or liquidation of the Corporation) shall occur with respect to the Notes, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the
rights and obligations of the Corporation and the rights of the holders
of the Notes under the Indenture at any time by the Corporation with the
consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Notes then outstanding and all other Securities then outstanding
under the Indenture and affected by such amendment and modification. The
Indenture also contains provisions permitting the holders of a majority
in aggregate principal amount of the Notes then outstanding and all other
Securities then outstanding under the Indenture and affected thereby, on
behalf of the holders of all such Securities, to waive compliance by the
Corporation with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver
by the holder of this Note shall be conclusive and binding upon such holder
and upon all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
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No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer, or director, as such, past, present, or future, of the Corporation or any predecessor or successor corporation, whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for issue hereof, expressly waived and released.
The Notes of this series shall be dated the date of their authentication.
All terms used in this Note which are not defined herein, but are defined in the Indenture shall have the meanings assigned to them in the Indenture.
If the Notes are to be issued and
outstanding pursuant to a book-entry system, the following paragraph is
applicable: The Notes are being issued by means of a book-entry system
with no physical distribution of certificates to be made except as provided
in the Indenture. The book-entry system maintained by Euroclear Bank S.A./N.V.,
as operator of the Euroclear System, ("Euroclear"), and/or Clearstream
Banking, société anonyme, Luxembourg ("Clearstream, Luxembourg")
will evidence ownership of the Notes, with transfers of ownership effected
on the records of Euroclear and Clearstream, Luxembourg and their participants
pursuant to rules and procedures established by Euroclear and Clearstream,
Luxembourg and their participants. The Corporation will recognize Euroclear
and Clearstream, Luxembourg as the depositories of the Notes, as the owner
of the Notes for all purposes, including payment of principal, (premium,
if any), and interest, notices, and voting. Transfers of the Notes will
be in accordance with the rules and procedures established by Euroclear
and Clearstream, Luxembourg. The Corporation has no responsibility for
any aspect of the records kept by Euroclear or Clearstream, Luxembourg
or any of their direct or indirect participants. The Corporation does not
supervise these systems in any way.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of the within Note shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT--............................Custodian..............................
(Cust)
(Minor)
Under Uniform Gifts to Minors Act
..........................................................
(State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Please Insert Social Security or Other
Identifying
Number of Assignee: ______________________________
the within Note and all rights thereunder, hereby irrevocably constituting and appointing _____________________________________ Attorney to transfer said Note on the books of the Corporation, with full power of substitution in the premises.
Dated: _______________________ _________________________________________
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
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