Bank of America - Fifth Supplemental Indenture



 Exhibit 4(rr) 
  
 BANK OF AMERICA CORPORATION 
  
 FIFTH SUPPLEMENTAL INDENTURE 
  
 Dated as of March 18, 2004 
  
 Supplementing the Indenture, dated as of June 30, 2000, 
 between FleetBoston Financial Corporation 
 and The Bank of New York, as Trustee, 
 as supplemented by 
 a First Supplemental
Indenture dated as of June 30, 2000, 
 a Second Supplemental Indenture dated as of September 17, 2001, 
 a Third Supplemental Indenture dated as of March 8, 2002, and 
 a Fourth Supplemental Indenture dated as of July 31, 2003. 
  









 THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of March 18, 2004 (the “Fifth Supplemental
Indenture”), is made by and among BANK OF AMERICA CORPORATION, a Delaware corporation (the “Corporation”), FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island corporation (“FBFC”), 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 June 30, 2000 (the “Original Indenture”), providing for the
issuance of Junior Subordinated Unsecured Debentures (the “Notes”); 
  
 WHEREAS, the Original Indenture has been amended and supplemented by a First Supplemental Indenture dated as of June 30, 2000, a Second Supplemental Indenture dated as of September 17, 2001, a Third
Supplemental Indenture dated as of March 8, 2002 and a Fourth Supplemental Indenture dated as of July 31, 2003 (as amended and supplemented, the “Indenture”); 
  
 WHEREAS, there is outstanding under the terms of the Indenture one or more series of Notes (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 of the Indenture provides that in the case of a merger, the surviving corporation shall expressly assume by supplemental indenture all the obligations, covenants and conditions under the Securities and the
Indenture to be kept or performed by FBFC; 
  
 WHEREAS,
Section 9.01(a) of the Indenture provides that FBFC 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, covenants and agreements of FBFC under the Indenture; 
  
 WHEREAS, Section 9.01(d) of the Indenture provides that FBFC 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 Fifth 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 Fifth 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 of the
Securities of all series in accordance with the terms of each series, according to their tenor and the due and punctual performance and observance of all the covenants and conditions of the Indenture with respect to each series or established with
respect to such series to be kept or performed by FBFC.  
  
 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’ and ‘Company Order’ mean, respectively, a written request or order signed in the name of the
Company by its 

  

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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. Each such certificate shall include statements provided for in Section 13.06 if and to
the extent required by the provisions of that Section.” 
  
 (b) Section 2.03(n) is hereby amended by deleting present Section 2.03(n) and replacing it with the following: 
  
 “(n) 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 securities of the Company or any third party.”

  
 SECTION 1.4 Trustee’s Determination and
Acceptance. The Trustee has determined that this Fifth Supplemental Indenture is satisfactory in form and hereby accepts this Fifth 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 Fifth 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 Fifth 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 Fifth Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Fifth 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
Fifth Supplemental Indenture is in all respects confirmed and preserved. 
  
 SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this Fifth 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 Fifth Supplemental Indenture, the provision of the TIA shall control. If any provision of this Fifth 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 Fifth Supplemental Indenture, as the case may be. 
  
 SECTION 2.6 Severability. In case any provision in this Fifth 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 Fifth 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 
  

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 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
Department 
 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 Fifth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Fifth Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions hereof. 
  
 SECTION 2.9 Benefits of Fifth Supplemental Indenture, etc. Nothing in this Fifth 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 Fifth Supplemental Indenture or the Securities. 
  
 SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In
entering into this Fifth 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 Fifth Supplemental Indenture. The recitals and statements in this Fifth 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 Fifth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 
  
 SECTION 2.12 Governing Law. This Fifth 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 Fifth 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. Live
	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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