Declaration of Trust of BAC Capital Trust VIII



 Exhibit 4.8 
  

  
 DECLARATION OF TRUST 
  
 BAC CAPITAL TRUST VIII

  
 Dated as of March 30, 2005 
  

  









  
 TABLE OF CONTENTS

  

					
	 	  	 	  	Page


	ARTICLE 1
	DEFINITIONS
			
	SECTION 1.1	  	Definitions	  	1
	
	ARTICLE 2
	ORGANIZATION
			
	SECTION 2.1	  	Name	  	3
	SECTION 2.2	  	Office	  	3
	SECTION 2.3	  	Purpose	  	4
	SECTION 2.4	  	Authority	  	4
	SECTION 2.5	  	Title to Property of the Trust	  	4
	SECTION 2.6	  	Powers of the Trustees	  	4
	SECTION 2.7	  	Filing of Certificate of Trust	  	5
	SECTION 2.8	  	Duration of Trust	  	5
	SECTION 2.9	  	Responsibilities of the Sponsor	  	5
	SECTION 2.10	  	Declaration Binding on Securities Holders	  	6
	
	ARTICLE 3
	TRUSTEES
			
	SECTION 3.1	  	Trustees	  	6
	SECTION 3.2	  	Regular Trustees	  	6
	SECTION 3.3	  	Delaware Trustee	  	7
	SECTION 3.4	  	Property Trustee	  	7
	SECTION 3.5	  	Not Responsible for Recitals or Sufficiency of Declaration	  	7
	
	ARTICLE 4
	LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
			
	SECTION 4.1	  	Exculpation	  	7
	SECTION 4.2	  	Fiduciary Duty	  	8
	SECTION 4.3	  	Indemnification	  	9
	SECTION 4.4	  	Outside Businesses	  	12
	
	ARTICLE 5
	AMENDMENTS, TERMINATION, MISCELLANEOUS
			
	SECTION 5.1	  	Amendments	  	12
	SECTION 5.2	  	Termination of Trust	  	12
	SECTION 5.3	  	Governing Law	  	13
	SECTION 5.4	  	Headings	  	13
	SECTION 5.5	  	Successors and Assigns	  	13
	SECTION 5.6	  	Partial Enforceability	  	13
	SECTION 5.7	  	Counterparts	  	13

  

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 DECLARATION OF TRUST

 OF 
 BAC CAPITAL TRUST VIII

  
 THIS DECLARATION OF TRUST (“Declaration”) dated and
effective as of March 30, 2005 by the Trustees (as defined herein), the Sponsor (as defined herein), and by the holders, from time to time, of undivided beneficial interests in the Trust to be issued pursuant to this Declaration; 
  
 WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
“Trust”) pursuant to the Statutory Trust Act (as defined herein) for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in
certain Notes of the Note Issuer (as defined herein); and 
  
 NOW,
THEREFORE, it being the intention of the parties hereto that the Trust constitute a statutory trust under the Statutory Trust Act and that this Declaration constitute the governing instrument of such statutory trust, the Trustees declare that all
assets contributed to the Trust will be held in trust for the exclusive benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust, subject to the provisions of this
Declaration. 
  
 ARTICLE 1 
  
 DEFINITIONS 
  
 SECTION 1.1 Definitions. 
  
 Unless the context otherwise requires: 
  

	 	(a)	Capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; 

  

	 	(b)	a term defined anywhere in this Declaration has the same meaning throughout unless otherwise specified; 

  

	 	(c)	all references to “the Declaration” or “this Declaration” are to this Declaration of Trust as modified, supplemented or amended from time to time;


  

	 	(d)	all references in this Declaration to Articles and Sections are to Articles and Sections of this Declaration unless otherwise specified; and 

  

	 	(e)	a reference to the singular includes the plural and vice versa. 

  
 “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule
thereunder. 
  









 “Business Day” means any day other than a day on which federal or state
banking institutions in New York, New York and Charlotte, North Carolina are authorized or obligated by law, executive order or regulation to close. 
  
 “Commission” means the Securities and Exchange Commission. 
  
 “Common Security” means a security representing an undivided beneficial interest in the
assets of the Trust with such terms as may be set out in any amendment to this Declaration. 
  
 “Company” means Bank of America Corporation, a Delaware corporation or any successor entity. 
  
 “Company Indemnified Person” means (a) any
Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.

  
 “Covered Person” means (a)
any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust’s Affiliates and (b) any holder of Securities. 
  
 “Delaware Trustee” has the meaning set forth in Section 3.1. 
  
 “Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time, or any successor legislation. 
  
 “Fiduciary Indemnified Person” has the meaning set forth in Section 4.3(b). 
  
 “Indemnified Person” means a Company
Indemnified Person or a Fiduciary Indemnified Person. 
  
 “Indenture” means the Indenture dated as of November 1, 2001 between the Company and the Note Trustee and any indenture supplemental thereto, or any other replacement or alternate indenture, pursuant to which the Notes are
to be issued. 
  
 “Note Issuer”
means the Company in its capacity as the issuer of the Notes under the Indenture. 
  
 “Notes” means the series of Notes to be issued by the Note Issuer and acquired by the Trust. 
  
 “Note Trustee” means The Bank of New York,
a New York banking corporation, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. 
  
 “Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, 

  

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trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. 
  
 “Preferred Security” means a security
representing a preferred undivided beneficial interest in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. 
  
 “Property Trustee” has the meaning set forth in Section 3.4. 
  
 “Regular Trustee” means any Trustee other
than the Delaware Trustee and the Property Trustee (as hereinafter defined). 
  
 “Securities” means the Common Securities and the Preferred Securities. 
  
 “Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor legislation.

  
 “Sponsor” means the Company
in its capacity as sponsor of the Trust. 
  
 “Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §3801 et seq., as it may be amended from time to time, or any successor legislation. 
  
 “Trustee” or “Trustees”
means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees
in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. 
  
 ARTICLE 2 
 ORGANIZATION 
  
 SECTION 2.1 Name.

  
 The Trust created by this Declaration is named “BAC
Capital Trust VIII.” The Trust’s activities may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. 
  

SECTION 2.2 Office. 
  
 The address of the principal office of the Trust is c/o Bank of America Corporation, Corporate Treasury Division, Bank of America Corporate Center, 100
North Tryon Street, 7th Floor, Charlotte, North Carolina 28255. At any time, the Regular Trustees may designate another principal office. 
  

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 SECTION 2.3 Purpose. 
  
 The exclusive purposes and functions of the Trust are (a) to issue and sell the Securities and use the proceeds from such
sale to acquire the Notes, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any
of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust. 
  
 SECTION 2.4 Authority. 
  
 Subject to the limitations provided in this Declaration, the Regular Trustees
shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees
acting on behalf of the Trust, no person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees
as set forth in this Declaration. 
  
 SECTION 2.5 Title to
Property of the Trust. 
  
 Legal title to all assets of the
Trust shall be vested in the Trust. 
  
 SECTION 2.6 Powers of
the Trustees. 
  
 The Regular Trustees shall have the
exclusive power and authority to cause the Trust to engage in the following activities: 
  
 (a) to issue and sell the Preferred Securities and the Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities; 
  
 (b) in connection with the issue and sale of the Preferred Securities, at the direction of the Sponsor, to: 
  
 (i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any amendments thereto in relation to the Preferred Securities; 
  
 (ii) execute and file any documents prepared by the Sponsor, or take any actions as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; 
  

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 (iii) to determine whether to list securities and to execute and file an application,
prepared by the Sponsor, to the New York Stock Exchange, Inc. or any other national stock exchange or The Nasdaq National Market, Inc. for listing upon notice of issuance of any Preferred Securities; 
  
 (iv) execute and file with the Commission a registration
statement on Form 8-A, if required, including any amendments thereto, prepared by the Sponsor, relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act; and 
  
 (v) execute and enter into an underwriting agreement
providing for the sale of the Preferred Securities; 
  
 (c) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and provide for reasonable compensation for such services; 
  
 (d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and 
  
 (e) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. 
  
 SECTION 2.7 Filing of Certificate of Trust. 
  
 On or after the date of execution of this Declaration, the Trustees shall
cause the Certificate of Trust for the Trust (the “Certificate of Trust”) in the form attached hereto as Exhibit A to be filed with the Secretary of State of the State of Delaware. 
  
 SECTION 2.8 Duration of Trust. 
  
 The Trust, absent termination pursuant to the provisions of Section 5.2,
shall have existence for 55 years from January 1, 2005. 
  
 SECTION 2.9 Responsibilities of the Sponsor. 
  
 In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: 
  
 (a) to prepare for filing by the Trust with the Commission a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments thereto; 
  
 (b) to determine the states or other jurisdictions in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and to take any and all such actions, other than actions
which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be 

  

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executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; 
  
 (c) to prepare for filing when required by the Trust an
application to the New York Stock Exchange, Inc. or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities; 
  
 (d) to prepare for filing by the Trust with the Commission any required registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and 
  
 (e) to negotiate the terms of an underwriting agreement providing for the sale of the Preferred Securities. 
  
 SECTION 2.10 Declaration Binding on Securities Holders. 
  
 Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration. 
  
 ARTICLE 3 
 TRUSTEES 
  
 SECTION 3.1 Trustees.

  
 The number of Trustees initially shall be three, and
thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint or remove without cause any Trustee at any time; provided,
however, that the number of Trustees shall in no event be less than two; provided further that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of Delaware (the “Delaware Trustee”); provided further that there shall be at least one trustee who is an employee or officer of, or is affiliated with the Company
(a “Regular Trustee”). 
  
 SECTION 3.2 Regular
Trustees. 
  
 The initial Regular Trustees shall be:

  
 James T. Houghton and 
 Karen A. Gosnell 
  
 (a) Except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, any
one such Regular Trustee. 
  
 (b) Unless
otherwise determined by the Regular Trustees, and except as otherwise required by the Statutory Trust Act, any Regular Trustee is authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power 

  

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and authority to cause the Trust to execute pursuant to Section 2.6 provided, that, the registration statement referred to in Section 2.6(b),
including any amendments thereto, shall be signed by a majority of the Regular Trustees then holding office; and 
  
 (c) a Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21
his or her power for the purposes of signing any documents which the Regular Trustees have power and authority to cause the Trust to execute pursuant to Section 2.6. 
  
 SECTION 3.3 Delaware Trustee. 
  
 The initial Delaware Trustee shall be: 
  
 The Bank of New York (Delaware) 
  
 Notwithstanding any other provision of this Declaration, the Delaware Trustee shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of the Regular Trustees described in this Declaration. The Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Statutory Trust
Act. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions to act of the Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to
undertake under this Declaration or the Statutory Trust Act and except for the gross negligence or willful misconduct of the Delaware Trustee. 
  
 SECTION 3.4 Property Trustee. 
  
 Prior to the issuance of the Preferred Securities and Common Securities, the Sponsor shall appoint another trustee (the “Property Trustee”)
meeting the requirements of an eligible trustee under the Trust Indenture Act of 1939, as amended, by the execution of an amendment to this Declaration executed by the Regular Trustees, the Sponsor, the Property Trustee and the Delaware Trustee.

  
 SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration. 
  
 The recitals contained in this Declaration
shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Declaration. 
  
 ARTICLE 4 
 LIMITATION OF LIABILITY OF 
 HOLDERS OF SECURITIES, TRUSTEES OR OTHERS 
  
 SECTION 4.1 Exculpation. 
  
 (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim 

  

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incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person’s gross negligence or willful misconduct with respect to such acts or omissions; and 
  
 (b) an Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or
on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid. 
  
 SECTION 4.2
Fiduciary Duty. 
  
 (a) To the extent
that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at
law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; 
  
 (b) unless otherwise expressly provided herein: 
  

(i) whenever a conflict of interest exists or arises between Covered Persons; or 
  
 (ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, 
  
 the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise; and 
  

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 (c) whenever in this Declaration an Indemnified Person is permitted or required to make a
decision: 
  
 (i) in its “discretion”
or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or 
  
 (ii) in its “good faith” or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law.

  
 SECTION 4.3 Indemnification. 
  
 (a) (i) The Note Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Trust) by reason of the fact that he is or was a Company Indemnified Person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
Company Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. 
  
 (ii) The Note
Issuer shall indemnify, to the full extent permitted by law, any Company Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company Indemnified Person against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such 

  

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action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. 
  
 (iii) To the extent that a Company Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith. 
  
 (iv) Any indemnification under paragraphs (i) and (ii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the specific case upon a determination that indemnification of the Company Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Common Security holder of the Trust. 
  
 (v) Expenses (including reasonable attorneys’ fees and expenses) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a) shall be paid by the Note Issuer in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such Company Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Note Issuer as authorized in this Section
4.3(a). Notwithstanding the foregoing, no advance shall be made by the Note Issuer if a determination is reasonably and promptly made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion or (iii) the Common Security holder of the Trust, that, based upon the facts known to the Regular
Trustees, counsel or the Common Security holder at the time such determination is made, such Company Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such Company Indemnified Person believed or 

  

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had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Regular Trustees, independent legal
counsel or Common Security holder reasonably determine that such person deliberately breached his duty to the Trust or its Common or Preferred Security holders. 
  
 (vi) The indemnification and advancement of expenses provided by, or granted pursuant to, the other
paragraphs of this Section 4.3(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Note
Issuer or Preferred Security Holders of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Note Issuer and each Company Indemnified Person who serves in such capacity at any time while this Section 4.3(a) is in effect. Any repeal or modification of this Section 4.3(a) shall not affect any rights or
obligations then existing. 
  
 (vii) The Note
Issuer or the Trust may purchase and maintain insurance on behalf of any person who is or was a Company Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Note Issuer would have the power to indemnify him against such liability under the provisions of this Section 4.3(a). 
  
 (viii) For purposes of this Section 4.3(a), references to “the Trust” shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 4.3(a) with respect to the resulting or surviving entity as he would have
with respect to such constituent entity if its separate existence had continued. 
  
 (ix) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 4.3(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to be a Company Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. 
  
 (b) The Note Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors, shareholders, members, partners, employees, representatives, nominees, 

  

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custodians or agents of the Delaware Trustee (each of the Persons in (i) through (iii) being referred to as a “Fiduciary Indemnified Person”) for,
and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 4.3(b) shall survive the termination of this Declaration. 
  
 SECTION 4.4 Outside Businesses. 
  
 Any Covered Person, the Sponsor and the Delaware Trustee may engage in or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived
therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the Delaware Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person and the Delaware Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for or may act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. 
  
 ARTICLE 5 
 AMENDMENTS, TERMINATION, MISCELLANEOUS 
  
 SECTION 5.1 Amendments. 
  
 At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Regular
Trustees, the Delaware Trustee and the Sponsor. 
  
 SECTION 5.2
Termination of Trust. 
  
 (a) The Trust shall dissolve:

  
 (i) upon the bankruptcy of the Sponsor;

  
 (ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor’s charter; 
  

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 (iii) upon the entry of a decree of judicial dissolution of the Sponsor or the Trust; and

  
 (iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the Sponsor; and 
  
 (b) as soon as is practicable after the occurrence of an event referred to in Section 5.2(a), and after satisfaction of all obligations of the Trust, the Trustees shall file a certificate of cancellation with the Secretary of State of the
State of Delaware and the Trust shall terminate. 
  
 SECTION 5.3
Governing Law. 
  
 This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. 
  
 SECTION 5.4 Headings. 
  
 Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any provision hereof. 
  
 SECTION 5.5 Successors and Assigns. 
  
 Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included,
and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether or not so expressed. 
  
 SECTION 5.6 Partial Enforceability. 
  
 If any provision of this Declaration, or the application of such provision to
any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. 
  
 SECTION 5.7 Counterparts. 
  
 This Declaration may contain more than one counterpart of the signature page
and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page. 
  

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 IN WITNESS WHEREOF, each of the undersigned has caused these presents to be executed as of the day and
year first above written. 
  

	
	
	 /s/ JAMES T. HOUGHTON

	 Name: James T. Houghton

	 Title: Regular Trustee

	
	 /s/ KAREN A. GOSNELL

	 Name: Karen A. Gosnell

	 Title: Regular Trustee



  

			
	 THE BANK OF NEW YORK (DELAWARE),
 as Delaware Trustee

		
	 By:
	 	 /s/ KRISTINE K. GULLO

	 Name:
	 	 Kristine K. Gullo

	 Title:
	 	 Assistant Vice President



  

			
	 BANK OF AMERICA CORPORATION,
 as Sponsor

		
	By:	 	 /S/ KAREN A. GOSNELL

	 Name:
	 	 Karen A. Gosnell

	 Title:
	 	 Senior Vice President



  

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 EXHIBIT A 
  
 CERTIFICATE OF TRUST 
  
 The undersigned, the trustees of BAC Capital Trust VIII, desiring to form a
statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C. § 3810, hereby certify as follows: 
  

	 	(a)	The name of the statutory trust being formed hereby (the “Trust”) is “BAC Capital Trust VIII.” 

  

	 	(b)	The name and business address of the trustee of the Trust which has its principal place of business in the State of Delaware is as follows: 

  
 The Bank of New York (Delaware) 
 502 White Clay Center, Route 273 
 Newark,
Delaware 19711 
  

	 	(c)	This Certificate of Trust shall be effective as of the date of filing. 

  
 Dated: March     , 2005 
  

	
	
	 
	 Name: James T. Houghton

	 Title: Regular Trustee

	
	 
	 Name: Karen A. Gosnell

	 Title: Regular Trustee



  

			
	 THE BANK OF NEW YORK (DELAWARE),
 as Delaware Trustee

		
	 By:
	 	 
	 Name:
	 	 Kristine K. Gullo

	 Title:
	 	 Assistant Vice President



  

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