Second Supplemental Indenture



====================================
SECOND SUPPLEMENTAL INDENTURE

between

BANK OF AMERICA CORPORATION

and

THE BANK OF NEW YORK

Dated as of January 31, 2002

=====================================



 

 

 

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TABLE OF CONTENTS

 

 

 

ARTICLE 1 DEFINITIONS

SECTION 1.1 Definition of Terms                                                                      
2

ARTICLE 2 GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1 Designation and Principal Amount                                                
4

SECTION 2.2 Maturity                                                                                      
4

SECTION 2.3 Form and Payment.                                                                     
4

SECTION 2.4 Global Form                                                                               
5

SECTION 2.5 Interest.                                                                                      
6

ARTICLE 3 PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment                                                           
7

SECTION 3.2 Optional Prepayment by Company                                             
7

SECTION 3.3 No Sinking Fund                                                                        
7

ARTICLE 4 EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period                                            
8

SECTION 4.2 Notice of Extension                                                                      
8

SECTION 4.3 Limitation of Transactions                                                             
9

ARTICLE 5 EXPENSES
SECTION 5.1 Payment of Expenses                                                                   
9

SECTION 5.2 Payment Upon Resignation or Removal                                       
10

ARTICLE 6 COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange                                                                 
10

ARTICLE 7 FORM OF NOTE
SECTION 7.1 Form of Note                                                                               
10

ARTICLE 8 ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes                                                                  
17

ARTICLE 9 MISCELLANEOUS
SECTION 9.1 Ratification of Indenture                                                                  
18

SECTION 9.2 Trustee Not Responsible for Recitals                                              
18

SECTION 9.3 Governing Law                                                                              
18

SECTION 9.4 Separability                                                                                   
18

SECTION 9.5 Counterparts                                                                                 
18

ARTICLE 10 MATURITY DATE EXTENSION
SECTION 10.1 Extension                                                                                     
19

SECTION 10.2 Notice of Extension                                                                      
19



 
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SECOND SUPPLEMENTAL INDENTURE


            THIS
SECOND SUPPLEMENTAL INDENTURE, dated as of January 31, 2002 (the "Second
Supplemental Indenture"), between BANK OF AMERICA CORPORATION, a Delaware
corporation (the "Company"), and THE BANK OF NEW YORK, as trustee (the
"Trustee"), under a Restated Indenture dated as of November 1, 2001 between
the Company and the Trustee (the "Indenture").

           WHEREAS,
the Company desires to establish, under the terms of the Indenture, a series
of its securities to be known as its 7% Junior Subordinated Notes, due
2032 (the "Notes"), the form and substance of such Notes and the terms,
provisions and conditions thereof, to be set forth as provided in the Indenture
and this Second Supplemental Indenture; and

            WHEREAS,
under the terms of an Underwriting Agreement dated as of January 24, 2002
(the "Underwriting Agreement"), among the Company, BAC Capital Trust II
(the "Trust") and the Underwriters named therein (the "Underwriters"),
the Trust has agreed to sell to the Underwriters $900,000,000 aggregate
liquidation amount of its 7% Capital Securities (such securities being
of the type referred to in the Indenture as the "Preferred Securities"
and in this Second Supplemental Indenture as the "Capital Securities");
and

 

            
WHEREAS, under the terms of a Subscription Agreement dated as of January
24, 2002 between the Trust and the Company (the "Subscription Agreement"),
the Company has committed to purchase all of the common securities of the
Trust (the "Common Securities") which Common Securities shall represent
at least 3% of the total capital of the Trust; and

             
WHEREAS, the Trust proposes to invest the gross proceeds from such offering
of Capital Securities, together with the gross proceeds from the issuance
and sale by the Trust of the Common Securities, in the Notes, as a result
of which the Trust will purchase $928,000,000 aggregate principal amount
of the Notes; and

             
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture; and

              
WHEREAS, all requirements necessary to make this Second Supplemental Indenture
a valid instrument in accordance with its terms and to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee,
the valid obligations of the Company, have been performed, and the execution
and delivery of this Second Supplemental Indenture have been duly authorized
in all respects.

              
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee
as follows:

 

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ARTICLE I
                                                                 
DEFINITIONS

SECTION 1.  Definition of Terms.

Unless the context otherwise requires:

           (a) a term
defined in the Indenture has the same meaning when used in this Second
Supplemental Indenture unless otherwise provided herein;

           (b) a term
defined anywhere in this Second Supplemental Indenture has the same meaning
throughout;

           (c) the
singular includes the plural and vice versa;

            (d)
a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;

            (e)
headings are for convenience of reference only and do not affect interpretation;

            
(f) the following terms have the meanings given to them in the Declaration:
(i) Business Day; (ii) Clearing Agency; (iii) Delaware Trustee; (iv) Capital
Security Certificate; (v) Depositary; (vi) Property Trustee; (vii) Regular
Trustee;

             
(g) the following terms have the meanings given to them in this Section
1.1;

              
"Additional Interest" shall have the meaning set forth in Section
2.5.

              
"Capital Treatment Event" means the reasonable determination by
the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof, or as a result of any official or administrative pronouncement
or action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or
decision is announced on or after the date of original issuance of the
Capital Securities, there is more than an insubstantial risk that the Company
will not be entitled to treat an amount equal to the aggregate liquidation
amount of the Capital Securities as Tier 1 capital (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of the Federal
Reserve Board, as then in effect and applicable to the Company.

               
"Compounded Interest" shall have the meaning set forth in Section
4.1.

               
"Coupon Rate" shall have the meaning set forth in Section 2.5.

                
"Declaration" means the Amended and Restated Declaration of Trust
of BAC Capital Trust II, a Delaware statutory business trust, dated as
of January 24, 2002.

 

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2

               
"Deferred Interest" shall have the meaning set forth in Section
4.1.

               
"Dissolution Election" means that, as a result of the election of
the Company, as Sponsor, the Trust is to be dissolved in accordance with
the Declaration, and the Notes held by the Property Trustee are to be distributed
to the holders of the Trust Securities issued by the Trust pro rata
or in any other manner specified in the Declaration.

               
"Extended Interest Payment Period" shall have the meaning set forth
in Section 4.1.

                
"Global Note" shall have the meaning set forth in Section 2.4.

                 
"Holder" means any person in whose name the Notes are registered
on the register kept by the Company or the Property Trustee in accordance
with the terms hereof.

                  
"Interest Payment Date" shall have the meaning set forth in Section
2.5.

                  
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), the Trust is or will be considered an investment company that is
required to be registered under the Investment Company Act of 1940, as
amended, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Capital Securities.

                 
"Maturity Date" means the date on which the Notes mature and on
which the principal shall be due and payable together with all accrued
and unpaid interest thereon, including Compounded Interest and Additional
Interest, if any.

                  
"Maturity Repayment Price" means the price, at the Maturity Date,
equal to the principal amount of, plus accrued interest on the, Notes.

                 
"Non-Book-Entry Capital Securities" shall have the meaning set forth
in Section 2.4.

                  
"Optional Prepayment Price" means 100% of the outstanding principal
amount of the Notes to be redeemed, plus any accrued and unpaid interest
thereon up to, but excluding the date of such prepayment.

                
"Optional Prepayment" means prepayment prior to the Maturity Date
of the Notes at the option of the Company in whole or in part at any time
on or after February 1, 2007.

                
"Special Event" means a Tax Event, Capital Treatment Event or an
Investment Company Event.

                
"Special Event Prepayment" means a prepayment of the Notes prior
to February 1, 2007, in whole but not in part, pursuant to the occurrence
of a Special Event.

 

 

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3

               
"Special Event Prepayment Price" means 100% of the outstanding principal
amount of the Notes, plus any accrued and unpaid interest thereon up to
but excluding the date of prepayment.

                
"Tax Event" means that (i) the Company shall have received an opinion
of a nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing
authority thereof or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment
or change is effective or such pronouncement or decision is announced on
or after the date of original issuance of the Capital Securities, there
is more than an insubstantial risk that interest payable on the Notes is
not, or within 90 days of the date thereof, will not be deductible, in
whole or in part, by the Company for United States federal income tax purposes
or (ii) the Regular Trustees have been informed by a nationally recognized
independent tax counsel that a No Recognition Opinion cannot be delivered.
"No Recognition Opinion" means an opinion of a nationally recognized independent
tax counsel experienced in such matters, which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the
holders of the Capital Securities and Common Securities will not recognize
any gain or loss for United States federal income tax purposes as a result
of the dissolution of the Trust and the distribution of the Notes.

                                                                    
ARTICLE 2

                        
GENERAL TERMS AND CONDITIONS OF THE NOTES

SECTION 2.1  Designation and Principal Amount.


 

There is hereby authorized and established under the terms of the Indenture
a series of the Company's securities designated the "7% Junior Subordinated
Notes, due 2032" limited in aggregate principal amount to $928,000,000,
which amount shall be as set forth in one or more written orders of the
Company for the authentication and delivery of the Notes pursuant to Section
2.04 of the Indenture.


SECTION 2.2  Maturity.


 

The Maturity Date for the Notes is February 1, 2032.

 
SECTION 2.3  Form and Payment.

 

Except as provided in Section 2.4, the Notes shall be issued in fully
registered certificated form without interest coupons. Principal and interest
on the Notes issued in certificated form will be payable, the transfer
of such Notes will be registrable and such Notes will be exchangeable for
Notes bearing identical terms and provisions at the office or agency of
the Trustee; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the Holder
at such address as shall appear in the Security Register. Notwithstanding
the foregoing, so long as the Holder of any Notes is the Property Trustee,
the payment of the principal of and interest (including Compounded Interest
and Additional Interest,

 
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if any) on such Notes held by the Property Trustee will be made at such
place and to such account as may be designated by the Property Trustee.

 
SECTION 2.4  Global Form.


 

          (a) In connection
with a Dissolution Election,
                      
(i) the Notes in certificated form shall be presented to the Trustee by
the Property Trustee to be exchanged for one or more fully registered securities
representing the aggregate principal amount of all then outstanding Notes
as a Global Security to be registered in the name of the Depositary, or
its nominee (a "Global Note"), and delivered by the Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the instructions
of the Regular Trustees. Upon any such presentation, the Company shall
execute a Global Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with
the Indenture and this Second Supplemental Indenture. Payments on the Notes
issued as a Global Note will be made to the Depositary; and

                      
(ii) if any Capital Securities are held in certificated form and not in
book-entry form, the Notes in certificated form may be presented to the
Trustee by the Property Trustee and any Capital Security Certificate which
represents Capital Securities other than Capital Securities held by the
Clearing Agency or its nominee ("Non-Book-Entry Capital Securities") will
be deemed to represent beneficial interests in Notes presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non-Book-Entry Capital Securities until
such Capital Security Certificates are presented to the Security Registrar
for transfer or reissuance, at which time such Capital Security Certificates
will be canceled and a Note, registered in the name of the holder of the
Capital Security Certificate or the transferee of the holder of such Capital
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Security Certificate
canceled, will be executed by the Company and delivered to the Trustee
for authentication and delivery in accordance with the Indenture and this
Second Supplemental Indenture. On issue of such Notes, Notes with an equivalent
aggregate principal amount that were presented by the Property Trustee
to the Trustee will be deemed to have been canceled.

           (b) A Global
Note may be transferred, in whole but not in part, only to another nominee
of the Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.

           (c) If
at any time the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary or if at any time the Depositary shall
no longer be registered or in good standing under the Exchange Act or other
applicable statute or regulation, and a successor Depositary for such series
is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, the
Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and make
available for delivery the Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Note in exchange for such Global

 

 

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5

Note. In addition, the Company may at any time determine that the Notes
shall no longer be represented by a Global Note. In such event the Company
will execute, and subject to Section 2.07 of the Indenture, the Trustee,
upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Notes in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Note in exchange
for such Global Note. Upon the exchange of the Global Note for such Notes
in definitive registered form without coupons, in authorized denominations,
the Global Note shall be canceled by the Trustee. Such Notes in definitive
registered form issued in exchange for the Global Note shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Notes to the
Depositary for delivery to the Persons in whose names such Securities are
so registered.

 
SECTION 2.5  Interest.

               
(a) Each Note will bear interest at the rate of 7% per annum (the "Coupon
Rate") from January 31, 2002 until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the Coupon Rate, compounded quarterly, payable (subject
to the provisions of Article IV) quarterly in arrears on February 1, May
1, August 1 and November 1 of each year (each, an "Interest Payment Date"),
commencing on May 1, 2002, to the Person in whose name such Note or any
predecessor Note is registered at the close of business on the regular
record date for such interest installment, which, in respect of any Notes
of which the Property Trustee is the Holder of a Global Note, shall be
the close of business on the Business Day next preceding that Interest
Payment Date. Notwithstanding the foregoing sentence, if the Capital Securities
are no longer in book-entry only form, the relevant record dates shall
be January 15, April 15, July 15 and October 15 prior to the regular Interest
Payment Date.

              
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed
on the basis of the actual number of days elapsed in such a 30-day period.
In the event that any date on which interest is payable on the Notes is
not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except that,
if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date.

              
(c) If, at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other domestic taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Notes held by the Property Trustee, such additional amounts
as shall be required so that the net amounts received and retained by the
Trust and the Property

 

 

 

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6

 

Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee
would have received had no such taxes, duties, assessments or other government
charges been imposed.

                                                                 
ARTICLE 3

                                          
PREPAYMENT OF THE NOTES

SECTION 3.1  Special Event Prepayment.


 

If a Special Event has occurred and is continuing prior to February
1, 2007, the Company shall have the right, upon not less than 30 days'
nor more than 60 days' notice to the Holders of the Notes, to prepay the
Notes, in whole but not in part, for cash within 90 days following the
occurrence of such Special Event (the "90 Day Period") at a prepayment
price equal to the Special Event Prepayment Price. The Special Event Prepayment
Price shall be paid prior to 12:00 noon, New York time, on the date of
such repayment or such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient to
pay the Special Event Prepayment Price by 10:00 a.m., New York time, on
the date such Special Event Prepayment Price is to be paid.

 
SECTION 3.2  Optional Prepayment by Company.

 

           
(a) Subject to the provisions of Section 3.2(b) and to the provisions of
Article 14 of the Indenture, the Company shall have the right to prepay
the Notes, in whole or in part, at any time and from time to time, on or
after February 1, 2007, at a redemption price equal to the Optional Prepayment
Price. Any prepayment pursuant to this paragraph will be made upon not
less than 30 days' nor more than 60 days' notice to the Holders of the
Notes. If the Notes are only partially prepaid pursuant to this Section
3.2, the Notes will be prepaid pro rata or by lot or by any
other method utilized by the Trustee; provided, that if at the time
of prepayment the Notes are registered as a Global Note, the Depositary
shall determine, in accordance with its procedures, the principal amount
of such Notes held by each Holder of a Note to be prepaid. The Optional
Prepayment Price shall be paid prior to 12:00 noon, New York time, on the
date of such prepayment or at such earlier time as the Company determines
provided that the Company shall deposit with the Trustee an amount sufficient
to pay the Optional Prepayment Price by 10:00 a.m., New York time, on the
date such Optional Prepayment Price is to be paid.
          (b) If a partial
prepayment of the Notes would result in the delisting of the Capital Securities
issued by the Trust from any national securities exchange or other organization
on which the Capital Securities are then listed, the Company shall not
be permitted to effect such partial prepayment and may only prepay the
Notes in whole.

 
SECTION 3.3  No Sinking Fund.

            
The Notes are not entitled to the benefit of any sinking fund.

 

 

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ARTICLE 4

                          
EXTENSION OF INTEREST PAYMENT PERIOD

SECTION 4.1  Extension of Interest Payment Period.


 

The Company shall have the right, at any time and from time to time
during the term of the Notes, to defer payments of interest by extending
the interest payment period of such Notes for a period not exceeding 20
consecutive quarterly periods (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due
and payable; provided that no Extended Interest Payment Period
may extend beyond the Maturity Date. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarterly
period of the Extended Interest Payment Period ("Compounded Interest").
At the end of the Extended Interest Payment Period, the Company shall pay
all interest accrued and unpaid on the Notes, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall
be payable to the Holders of the Notes in whose names the Notes are registered
in the Security Register on the first record date after the end of the
Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such previous and further extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the Maturity Date of the Notes. Upon the termination of any Extended Interest
Payment Period and upon the payment of all Deferred Interest then due,
the Company may commence a new Extended Interest Payment Period, subject
to the foregoing requirements. No interest shall be due and payable during
an Extended Interest Payment Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period.

 
SECTION 4.2  Notice of Extension.

 

           (a) If
the Property Trustee is the only registered Holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the Company
shall give written notice to the Regular Trustees, the Property Trustee
and the Trustee of its selection of such Extended Interest Payment Period
at least one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust
are payable, or (ii) the date on which the Trust is required to give notice
of the record date, or the date on which such Distributions are payable,
to the New York Stock Exchange or any other exchange upon which the Notes
or Trust Securities are listed or any other applicable self-regulatory
organization or to holders of the Capital Securities issued by the Trust,
but in any event at least one Business Day before such record date.
            (b)
If the Property Trustee is not the only Holder of the Notes at the time
the Company selects an Extended Interest Payment Period, the Company shall
give the Holders of the Notes and the Trustee written notice of its selection
of such Extended Interest Payment Period at least 10 Business Days before
the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date
of such interest payment to the New York Stock Exchange or any other exchange
upon which the

 

 

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Notes or Trust Securities are listed or any other applicable self-regulatory
organization or to Holders of the Notes.

             
(c) The quarterly period in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarterly
periods permitted in computing the maximum Extended Interest Payment Period
permitted under Section 4.1.

 
SECTION 4.3.  Limitation of Transactions.

          If (i) the Company
shall exercise its right to defer payment of interest as provided in Section
4.1 and such Extended Interest Payment Period is continuing or (ii) there
shall have occurred and be continuing any Event of Default or Nonpayment,
as defined in the Indenture, then (a) the Company shall not declare or
pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of
its common stock in connection with the satisfaction by the Company of
its obligations under any employee benefit plans, (ii) as a result of a
reclassification of its capital stock or the exchange or conversion of
one class or series of Company capital stock for another class or series
of its capital stock or (iii) the purchase of fractional interests in shares
of its capital stock pursuant to an acquisition or the conversion or exchange
provisions of such capital stock or security being converted or exchanged)
or make any guarantee payment with respect thereto and (b) the Company
shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company which rank pari passu with or junior to the Notes.

                                                                                 
ARTICLE 5

                                                                                  
EXPENSES

SECTION 5.1  Payment of Expenses.


 

In connection with the offering, sale and issuance of the Notes to
the Property Trustee and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to
the Notes, shall:
             
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including commissions to the underwriters payable pursuant
to the Underwriting Agreement, the compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;

             
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization, maintenance and dissolution
of the Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters payable pursuant to the Underwriting Agreement),
the fees and expenses of the Property Trustee and the Delaware Trustee,
the costs and expenses relating to the operation of the Trust, including
without limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s),

 

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registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of Trust assets);

            (c)
be primarily and fully liable for any indemnification obligations arising
with respect to the Declaration; and

            
(d) pay any and all taxes (other than United States withholding taxes attributable
to the Trust or its assets) and all liabilities, costs and expenses with
respect to such taxes of the Trust.

 
SECTION 5.2  Payment Upon Resignation or Removal.

        Upon termination of this
Second Supplemental Indenture or the Indenture or the removal or resignation
of the Trustee, unless otherwise stated, the Company shall pay to the Trustee
all amounts accrued to the date of such termination, removal or resignation.
Upon termination of the Declaration or the removal or resignation of the
Delaware Trustee or the Property Trustee, as the case may be, pursuant
to Section 5.7 of the Declaration, the Company shall pay to the Delaware
Trustee or the Property Trustee, as the case may be, all amounts accrued
to the date of such termination, removal or resignation.

                                                                
ARTICLE 6

                                      
COVENANT TO LIST ON EXCHANGE

SECTION 6.1  Listing on an Exchange.

              
If the Notes are to be issued as a Global Note in connection with the distribution
of the Notes to the holders of the Capital Securities upon a Dissolution
Election, the Company will use its best efforts to list such Notes on any
stock exchanges on which the Capital Securities are then listed.

                                                                     
ARTICLE 7.

                                                               
FORM OF NOTE

SECTION 7.1  Form of Note.

            
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:

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(FORM OF FACE OF NOTE)


[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a Global
Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Bank of New York, as Property Trustee of
BAC Capital Trust II (the "Trust"). This Note is exchangeable for Notes
registered in the name of a person other than The Bank of New York, as
Property Trustee of BAC Capital Trust II, or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note
may be registered except in limited circumstances.

Unless this Note is presented by an authorized representative of The
Depository Trust Company, New York ("DTC") to the issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of CEDE & CO. or such other name as requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co.
or such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]

THIS NOTE IS NOT A SAVINGS ACCOUNT OR A BANK DEPOSIT, IS NOT AN OBLIGATION
OF OR GUARANTEED BY ANY BANKING AFFILIATE OF BANK OF AMERICA CORPORATION
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY AND INVOLVES INVESTMENT RISKS, INCLUDING POSSIBLE
LOSS OF PRINCIPAL.

$_______________                                                           
CUSIP No. __ __________________

No._____________


BANK OF AMERICA CORPORATION

7% JUNIOR SUBORDINATED NOTES,

DUE 2032


           BANK OF
AMERICA CORPORATION, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of _____________ Dollars ($___________) on February
1, 2032, (the "Maturity Date"), and to pay interest on said principal sum
from January 31, 2002 or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid
or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on February 1, May 1, August 1 and November 1 of each year commencing
May 1, 2002, at the rate of 7% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum compounded quarterly. The amount
of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. In the

 

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event that any date on which interest is payable on this Note is not
a Business Day, then payment of interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable,
and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the person in whose name
this Note (or one or more Predecessor Securities, as defined in the Indenture)
is registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business
day next preceding such Interest Payment Date. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED BY A GLOBAL
NOTE ' which shall be the close of business on January 15, April 15, July
15 or October 15 prior to such Interest Payment Date.] Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such regular record date
and may be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders of this series
of Notes not less than 10 days prior to such special record date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Note shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public
and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
Holder at such address as shall appear in the Security Register. Notwithstanding
the foregoing, so long as the Holder of this Note is the Property Trustee,
the payment of the principal of (and premium, if any) and interest on this
Note will be made at such place and to such account as may be designated
by the Property Trustee. As used herein, the term "Business Day" shall
mean any day other than a day on which federal or state banking institutions
in New York, New York, or Charlotte, North Carolina, are authorized or
obligated by law, executive order or regulation to close.

                
The indebtedness evidenced by this Note is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Obligations (as defined in the Indenture) and this
Note is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee his or her attorney-in-fact for any and all such purposes.
Each Holder hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Obligations, whether now
outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.

 

 

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This Note shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the Certificate
of Authentication hereon shall have been signed by or on behalf of the
Trustee.

               
The provisions of this Note are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.

             
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
in its name by its duly authorized officers.

                                                                              
BANK OF AMERICA CORPORATION

                                                                               
By:

                                                                               
Name:

[Seal]                                                                      
Title:

Attest:

 

By:

Name:

Title:

 

 

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(FORM OF CERTIFICATE OF AUTHENTICATION)

CERTIFICATE OF AUTHENTICATION


              
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.

Dated ______________________

                                                                                       
The Bank of New York,

                                                                                       
as Trustee

                                                                                       
By _____________________________

                                                                                                        
Authorized Signatory

 

 

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(FORM OF REVERSE OF NOTE)

 

               
This Note is one of a duly authorized series of Notes of the Company (herein
sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of November 1, 2001, duly executed and delivered between the Company
and The Bank of New York, as Trustee (the "Trustee"), as supplemented by
the Second Supplemental Indenture dated as of January 31, 2002 (the "Second
Supplemental Indenture"), between the Company and the Trustee (the Indenture
as so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Notes. By the terms
of the Indenture, the Notes are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided
in the Indenture. This series of Notes is limited in aggregate principal
amount as specified in the Second Supplemental Indenture.
              
Because of the occurrence and continuation of a Special Event, as defined
in the Indenture, in certain circumstances, this Note may become due and
payable at a prepayment price equal to 100% of the principal amount of
the Notes, plus any accrued and unpaid interest thereon up to but excluding
the date of prepayment (the "Special Event Prepayment Price"). The Special
Event Prepayment Price shall be paid prior to 12:00 noon, New York time,
on the date of such prepayment or at such earlier time as the Company determines.
In addition, the Company shall have the right to prepay this Note at the
option of the Company, in whole or in part at any time on or after February
1, 2007 (an "Optional Prepayment"), or at any time in certain circumstances
upon the occurrence of a Special Event, at a redemption price equal to
100% of the outstanding principal amount of the Junior Subordinated Notes,
plus any accrued and unpaid interest thereon up to but excluding the date
of prepayment (the "Optional Prepayment Price"). Any prepayment pursuant
to this paragraph will be made upon not less than 30 days' nor more than
60 days' notice, at the Optional Prepayment Price. If the Notes are only
partially prepaid by the Company pursuant to an Optional Prepayment, the
Notes will be prepaid pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of prepayment,
the Notes are registered as a Global Note, the Depositary shall determine
the principal amount of such Notes held by each Note holder to be prepaid
in accordance with its procedures.

             
In the event of prepayment of this Note in part only, a new Note or Notes
of this series for the portion hereof not prepaid will be issued in the
name of the Holder hereof upon the cancellation hereof.

             
The Company shall have the right to extend the Maturity Date of the Notes
to any date up to and including February 1, 2051 upon at least 30 days
notice.

              
In case an Event of Default, as defined in the Indenture, shall have occurred
and be continuing, the principal of all of the Notes may be declared, and
upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture.

            
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes

 

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of each series affected at the time outstanding, as defined in the Indenture,
to execute supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Notes; provided, however, that no such
supplemental indenture shall (i) reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, without the consent of
the Holder of each Note so affected, or (ii) reduce the aforesaid percentage
of Notes, the Holders of which are required to consent to any such supplemental
indenture, without the consent of the Holders of each Note then outstanding
and affected thereby. The Indenture also contains provisions permitting
the Holders of a majority in aggregate principal amount of the Notes of
any series at the time outstanding affected thereby, on behalf of all of
the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences.
Any such consent or waiver by the registered Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Note and of
any Note issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation
of such consent or waiver is made upon this Note.

            
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and
in the money herein prescribed.

             
The Company shall have the right at any time during the term of the Notes
and from time to time to defer payment of interest by extending the interest
payment period of such Notes for a period not exceeding 20 consecutive
quarterly periods (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Notes to
the extent that payment of such interest is enforceable under applicable
law); provided that no Extended Interest Payment Period may
last beyond the Maturity Date of the Notes. Before the termination of any
such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest
Payment Period together with all such further extensions thereof shall
not exceed 20 consecutive quarterly periods or extend the Maturity Date
of the Notes. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period, subject to the requirements contained in this paragraph.

            As
provided in the Indenture and subject to certain limitations therein set
forth, this Note is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Trustee in the City and State
of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such

 

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transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.

            
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether
or not this Note shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes,
and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.

            No
recourse shall be had for the payment of the principal of or the interest
on this Note, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture, against any incorporator, stockholder,
officer or director, past, present or future, as such, of the Company or
of any predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.

             
This Global Note is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Indenture. Notes of this
series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations herein and therein set
forth, Notes of this series so issued are exchangeable for a like aggregate
principal amount of Notes of this series of a different authorized denomination,
as requested by the Holder surrendering the same.

             
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.

              
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.

 

                                                                
ARTICLE 8

                                              
ORIGINAL ISSUE OF NOTES

 

SECTION 8.1  Original Issue of Notes.

           Notes in
the aggregate principal amount of $928,000,000 may, upon execution of this
Second Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Notes to or upon the written order of the Company, signed
by any Authorized Officer, as defined in the Indenture, without any further
action by the Company.

 

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ARTICLE 9

                                                       
MISCELLANEOUS

SECTION 9.1  Ratification of Indenture.


 

The Indenture, as supplemented by this Second Supplemental Indenture,
is in all respects ratified and confirmed, and this Second Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the
extent herein and therein provided.

 
SECTION 9.2  Trustee Not Responsible for Recitals.

 

The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Second Supplemental Indenture.

 
SECTION 9.3  Governing Law.

 

This Second Supplemental Indenture and each Note shall be deemed to
be a contract made under the internal laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of said
State.

 
SECTION 9.4  Separability.

 

In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.

 
SECTION 9.5  Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.

 

 

 

 

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ARTICLE 10

                                  
MATURITY DATE EXTENSION

SECTION 10.1  Extension.


 

         (a) The Company shall
have the right at any time and from time to time during the term of the
Notes, to extend the Maturity Date of the Notes to any date up to and including
February 1, 2051 (the "Extended Maturity Date"). During the extended period
(i) the Company shall continue to make quarterly interest payments on the
Notes in the same manner as prior to such extension; and (ii) shall have
the same rights to prepay the Notes and to extend the interest payment
periods hereunder.
         (b) The Company may
exercise its right under this Section 10.1 only if at the time such election
is made and at the time such extension commences:

                 
(i) no event of default under the Notes has occurred and is continuing;

                
(ii) the Trust is not in arrears on payments of distributions on the Capital
Securities and no deferred distributions on the Capital Securities are
accumulated; and

               
(iii) the Notes are, and after such extension will be, rated at least BBB-
by Standard & Poor's Ratings Services, at least Baa3 by Moody's Investors
Service, Inc. or at least the equivalent by any other nationally recognized
statistical rating organization.

 
SECTION 10.2.  Notice of Extension.
             
(a) If the Property Trustee is the only registered Holder of the Notes
at the time the Company selects an Extended Maturity Date, the Company
shall give written notice to the Regular Trustees, the Property Trustee
and the Trustee of its selection of such Extended Maturity Date at least
30 days before the original Maturity Date.

             
(b) If the Property Trustee is not the only Holder of the Notes at the
time the Company selects an Extended Maturity Date, the Company shall give
the Holders of the Notes and the Trustee written notice of its selection
of such Extended Maturity Date at least 30 days before the original Maturity
Date.

             
(c) The delivery of the notice of selection of an Extended Maturity Date
shall be deemed to automatically extend the Maturity Date of the Notes
without a requirement that any other documents be executed by the parties.


[Signature Page Follows]











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            IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed by their authorized respective officers as
of the day and year first above written.

                                                                                 
BANK OF AMERICA CORPORATION

                                                                                  
By:  /s/ KAREN A. GOSNELL

                                                                                  
Name: Karen A. Gosnell

                                                                                  
Title: Senior Vice President

                                                                                   
THE BANK OF NEW YORK

                                                                                  
as Trustee

                                                                                   
By:/s/ DEREK KETTEL

                                                                                   
Name:  Derek Kettel

                                                                                    
Title:  Agent