BANK OF AMERICA CORPORATION
THIRD SUPPLEMENTAL INDENTURE
Dated as of March 18, 2004
Supplementing the Indenture, dated
as of December 11, 1996, between
FleetBoston Financial Corporation
(formerly Fleet Financial Group, Inc.)
and J.P. Morgan Trust Company, N.A.
(successor to The First National Bank of Chicago), as Trustee,
as supplemented by a
First Supplemental Indenture dated as of December 11, 1996, and
a Second Supplemental Indenture dated as of February 4, 1997.
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of March 18, 2004 (the Third 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 Financial Group, Inc.), and J.P. MORGAN TRUST COMPANY, N.A., a national banking association (successor to The First National Bank of Chicago), as Trustee (the Trustee) under the Indenture referred to herein.
W I T N E S S E T H:
WHEREAS, Fleet Financial Group, Inc. (Fleet Financial) and The First National Bank of Chicago (Bank of Chicago) were parties to an Indenture dated as of December 11, 1996 (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 December 11, 1996 and a Second Supplemental Indenture dated as of February 4, 1997 (as amended and supplemented, the Indenture)
WHEREAS, under the terms of the Indenture, FBFC is the successor to Fleet Financial and the Trustee is the successor to Bank of Chicago;
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;
WHEREAS, this Third 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 Third 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:
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 Third 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 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 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 Trustees Acceptance. The Trustee hereby accepts this Third Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this Third 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 Third 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 Third Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Third Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this Third Supplemental Indenture is in all respects confirmed and preserved.
SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this Third 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 Third Supplemental Indenture, the provision of the TIA shall control. If any provision of this Third 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 Third Supplemental Indenture, as the case may be.
SECTION 2.6 Severability. In case any provision in this Third 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 Third 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:
J.P. Morgan Trust Company, N.A.
Institutional Trust ServicesCorporate Trust
611 Woodward Avenue
Detroit, Michigan 48226
Attention: J. Michael Banas, Vice President.
SECTION 2.8 Headings. The Article and Section headings of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Third Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 2.9 Benefits of Third Supplemental Indenture, etc. Nothing in this Third 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 Third Supplemental Indenture or the Securities.
SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In entering into this Third 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 Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 2.12 Governing Law. This Third 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]
IN WITNESS WHEREOF, the parties have caused this Third Supplemental Indenture to be duly executed as of the date first written above.
|Bank of America Corporation|
/s/ KAREN A. GOSNELL
Name: Karen A. Gosnell
Title: Senior Vice President
|FleetBoston Financial Corporation|
/S/ JANICE B. LIVA
Name: Janice B. Liva
Title: Assistant Secretary
|J.P. Morgan Trust Company, N.A.|
/s/ KISHA A. HOLDER
Name: Kisha A. Holder
Title: Assistant Vice President