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



 Exhibit 4.49 
  
 BANK OF AMERICA CORPORATION 
  

  
 FIRST SUPPLEMENTAL INDENTURE

  
 Dated as of March 18, 2004 
  
 Supplementing the Indenture, dated 
 as of May 15, 1991, between 
 FleetBoston
Financial Corporation 
 (formerly Fleet/Norstar Financial Group, Inc.) 
 and Citibank, N.A., 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/Norstar
Financial Group, Inc. (“Fleet/Norstar”)) and CITIBANK, N.A., a national banking association, as Trustee (the “Trustee”), under the Indenture referred to herein. 
  
 W I T N E S S E T H: 
  

WHEREAS, FBFC, as successor to Fleet/Norstar, and the Trustee are parties to an Indenture, dated as of May 15, 1991 (the “Indenture”),
providing for the issuance of Subordinated Debt Securities; 
  
 WHEREAS, there is outstanding under the terms of the Indenture one or more series of notes as Subordinated 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 10.01(i) 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 9.01(i) 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 9.01(iv) 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 First 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 that this First 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 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, premium, if any, and any interest on all the Securities and
the performance 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 1.01 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 

  

 2 








 
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) The present Section 3.01(xix) is hereby amended by deleting present Section 3.01(xix) and replacing it with the following: 
  
 “(xix) 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 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. 
  

 3 








 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 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: 
  
 Citibank, N.A. 
 Corporate Trust Department 
 111 Wall Street 
 14th Floor 
 New York,
New York 10043. 
  

 4 








 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 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. 
  
 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] 
  

 5 








 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:
  
 Citibank, N.A.

		
	By:	 	/s/    NANCY FORTE
	 	 	

	 Name: Nancy Forte
 Title: Assistant Vice President



  

 6