First Supp. Indenture - Mar. 18, 2004 - FleetBoston/ Bank of America/ Bank of NY



 Exhibit 4.61 
  
 BANK OF AMERICA CORPORATION 
  

  
 FIRST SUPPLEMENTAL INDENTURE

  
 Dated as of March 18, 2004 
  
 Supplementing the Indenture, dated 
 as of December 6, 1999, between 
 FleetBoston
Financial Corporation (formerly Fleet Boston Corporation) 
 and The Bank of New York, as Trustee 







 THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 18, 2004 (the “First Supplemental
Indenture”), is made by and among BANK OF AMERICA CORPORATION, a Delaware corporation (the “Corporation”), FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (“FBFC”) (formerly Fleet Boston
Corporation) and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the “Trustee”), under the Indenture referred to herein. 
  
 W I T N E S S E T H: 
  
 WHEREAS, FBFC and the Trustee are parties to an Indenture, dated as of December 6, 1999 (the “Indenture”), providing for the issuance of
Senior Debt Securities; 
  
 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; and 
  
 WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of each of FBFC and the Corporation. 
  
 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 First 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.” 
  
 (ii) The present definitions of “Company Request” and “Company Order” are hereby deleted and replaced with the
following: 
  
 “‘Company Request’
or ‘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: 
  

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 “‘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) The present Section 301(21) is hereby amended by deleting present
Section 301(21) and replacing it with the following: 
  
 “(21) 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 Determination and Acceptance. The Trustee has determined that this First Supplemental Indenture is satisfactory in form
and hereby accepts this First 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 First 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 First
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 First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First
Supplemental Indenture shall henceforth be read and construed together. 
  
 SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved. 
  
 SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First 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 First Supplemental Indenture, the provision of the TIA shall control. If any
provision of this First Supplemental Indenture modifies or excludes any provision of 

  

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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
First Supplemental Indenture, as the case may be. 
  
 SECTION
2.6 Severability. In case any provision in this First 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 First 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 is 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: 
  
 The Bank of New York 
 Corporate Trust Administration 
 101 Barclay Street 
 Floor 8 West 

New York, New York 10286 
 Attention: Kisha
Holder, Assistant Vice President 
  
 SECTION 2.8 Headings.
The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to 

  

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be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof. 
  
 SECTION 2.9 Benefits of First Supplemental Indenture, etc. Nothing in
this First 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 First Supplemental Indenture or the Securities. 
  
 SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In entering into this First 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. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture. The recitals and statements in this First Supplemental Indenture are deemed to be those of the Corporation and FBFC and not of the Trustee. 
  
 SECTION 2.11 Counterparts. The parties may sign any number of copies
of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 
  
 SECTION 2.12 Governing Law. This First 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 First 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:

	
	 The Bank of New York

		
	 By:
	 	 /s/    KISHA A. HOLDER

	 	 	

	 Name: Kisha A. Holder
 Title: Assistant Vice President



  

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