Second Supp Indenture - Mar 18, 2004 - FleetBoston/ Bank of America/ Wells Fargo



 Exhibit 4.56 
  
 BANK OF AMERICA CORPORATION 
  

  
 SECOND SUPPLEMENTAL
INDENTURE 
  
 Dated as of March 18, 2004 
  
 Supplementing the Indenture, dated 
 as of June 15, 1992, between 
 FleetBoston
Financial Corporation 
 (successor to BankBoston Corporation, formerly Bank of Boston Corporation) 
 and Wells Fargo Bank, N.A., 
 (formerly Norwest
Bank Minnesota, National Association), as Trustee, 
 as supplemented by a First Supplemental Indenture dated as of October 1, 1999.








 THIS SECOND SUPPLEMENTAL INDENTURE, dated as of March 18, 2004 (the “Second Supplemental
Indenture”), is made by and among BANK OF AMERICA CORPORATION, a Delaware corporation (the “Corporation”), FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (“FBFC”) (successor to BankBoston
Corporation, formerly Bank of Boston Corporation) and WELLS FARGO BANK, N.A., a national banking association (formerly Norwest Bank Minnesota, National Association), as Trustee (the “Trustee”) under the Indenture referred to herein.

  
 W I T N E S S E T H: 
  
 WHEREAS, Bank of Boston Corporation (“Bank of Boston”) and
Norwest Bank Minnesota, National Association (“Norwest”) were parties to an Indenture dated as of June 15, 1992 (the “Original Indenture”), providing for the issuance of Senior Debt Securities; 
  
 WHEREAS, the Original Indenture has been amended and supplemented by a
First Supplemental Indenture dated October 1, 1999 (as amended and supplemented, the “Indenture”); 
  
 WHEREAS, under the terms of the Indenture, FBFC is the successor to Bank of Boston and the Trustee is the successor to Norwest; 
  
 WHEREAS, there is outstanding under the terms of the Indenture one or
more series of notes as Senior Debt Securities (the “Securities”); 
  
 WHEREAS, FBFC and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 27, 2003, pursuant to which FBFC will merge with and into the
Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger; 
  
 WHEREAS, the Merger is expected to be consummated on April 1, 2004; 
  
 WHEREAS, Section 801(1) of the Indenture provides that in the case of a merger, the surviving corporation shall
expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by FBFC; 
  
 WHEREAS, Section 901(1) of the Indenture provides that FBFC, with the authorization of its Board of Directors, and the Trustee may amend the
Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to FBFC by merger and the assumption by the successor corporation of the obligations and covenants of FBFC under the Indenture;

  
 WHEREAS, Section 901(9) of the Indenture provides that
FBFC, with the authorization of its Board of Directors, and the Trustee may amend the Indenture without notice to or consent of the holders of the Securities in order to supplement any provision contained in the Indenture; 







 WHEREAS, this Second Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of each of FBFC and the Corporation; and 
  
 WHEREAS, the Trustee has determined this Second Supplemental Indenture is satisfactory in form. 
  
 NOW, THEREFORE, in consideration of the premises, FBFC, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the
holders of the Securities: 
  
 ARTICLE I 
 ASSUMPTION BY SUCCESSOR CORPORATION 
 AND SUPPLEMENTAL PROVISIONS 
  
 SECTION 1.1
Assumption of the Securities. 
  
 (a) The Corporation hereby
represents and warrants that 
  
 (i) it is a
corporation organized and existing under the laws of the State of Delaware and the surviving corporation in the Merger; and 
  
 (ii) the execution, delivery and performance of this Second Supplemental Indenture has been duly authorized by the Board of Directors of
the Corporation. 
  
 (b) The Corporation hereby expressly assumes
the due and punctual payment of the principal of (and premium, if any) and any interest on all the Securities and the due and punctual performance and observance of every covenant of the Indenture on the part of FBFC to be performed or
observed. 
  
 SECTION 1.2 The Company. Effective
April 1, 2004, the name of the Company, as the successor corporation under the Indenture, shall be “Bank of America Corporation.” 
  
 SECTION 1.3 Supplemental Provisions. In connection with the issuance of Securities under this Indenture: 
  
 (a) Definitions in the present Section 101 are hereby amended as follows:

  
 (i) The present definition of “Board Resolution” is
hereby deleted and replaced with the following: 
  
 “‘Board Resolution’ means a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or a committee acting under the authority of, or appointment by, the
Board of Directors and to be in full force and effect on the date of such certification.” 
  

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 (ii) The present definitions of “Company Request” and “Company Order” are hereby
deleted and replaced with the following: 
  
 “‘Company Request’ and ‘Company Order’ mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer, Vice
President, General Counsel, Deputy or Associate General Counsel or Treasurer and delivered to the Trustee.” 
  
 (iii) The present definition of “Officers’ Certificate” is hereby deleted and replaced with the following: 
  
 “‘Officers’ Certificate’ means a
certificate signed by the Chairman of the Board, the Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel, Deputy or Associate General Counsel or Treasurer of the Company and delivered to the Trustee.”

  
 (b) Section 301(24) is hereby amended by deleting present
Section 301(24) and replacing it with the following: 
  
 “(24) any other terms of the Securities or provisions relating to the payment of principal, premium (if any) or interest thereon, including, but not limited to, whether such Securities are issuable at a discount or premium, as
amortizable Securities, and if payable in, convertible or exchangeable for commodities or for the securities of the Company or any third party.” 
  
 SECTION 1.4 Trustee’s Acceptance. The Trustee hereby accepts this Second Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture. 
  
 ARTICLE II

 MISCELLANEOUS 
  
 SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this Second Supplemental Indenture by
the Corporation, FBFC and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder
of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby. 
  
 SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force
and effect. 
  
 SECTION 2.3 Indenture and Supplemental
Indentures Construed Together. This Second Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Second Supplemental Indenture shall henceforth be read and construed together.

  

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 SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this
Second Supplemental Indenture is in all respects confirmed and preserved. 
  
 SECTION 2.5 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 (the “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 2.6 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 2.7 Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Indenture. 
  
 SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Second Supplemental Indenture or the Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Corporation may be given or served by postage prepaid first class mail addressed (until another address if filed by the Corporation with the Trustee) as follows: 
  
 Bank of America Corporation 
 Corporate Treasury Division, NC1-007-07-06 
 100 North Tryon Street 
 Charlotte, North Carolina 28255-0001 
 Attention: Karen A. Gosnell, Senior Vice President 
  
 With a copy to: 
 Bank of America Corporation

 Legal Department, NC1-002-29-01 
 101 South Tryon Street 
 Charlotte, North Carolina 28255-0065 
 Attention: Teresa M. Brenner, Associate General Counsel 
  
 Any notice, direction, request or demand by any holder of Securities to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the principal office of the Trustee, which shall be as follows: 
  

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 Wells Fargo Bank, N.A. 
 Corporate Trust Services 
 Sixth Street and Marquette Avenue 
 Mail Stop MAC N9303-120 
 Minneapolis,
Minnesota 55479 
 Attention: Susan E. Jacobsen. 
  
 SECTION 2.8 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 2.9 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 2.10
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 2.11 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 2.12 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. 
  
 [Signature Page Follows] 
  

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 IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed
as of the date first written above. 
  

			
	 THE CORPORATION:
  
 Bank of America Corporation

		
	By:	 	/s/     KAREN A. GOSNELL
	 	 	

	 Name: Karen A. Gosnell
 Title: Senior Vice President



  

			
	 FBFC:
  
 FleetBoston Financial Corporation

		
	By:	 	/s/    JANICE B. LIVA
	 	 	

	 Name: Janice B. Liva
 Title: Assistant Secretary



  

			
	 THE TRUSTEE:
  
 Wells Fargo Bank, N.A.

		
	By:	 	/s/    SUSAN E. JACOBSEN
	 	 	

	 Name: Susan E. Jacobsen
 Title: Vice President



  

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