<PAGE>

                                                                     Exhibit 4.6

































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


                              DECLARATION OF TRUST

                              BAC CAPITAL TRUST II

                         Dated as of September 26, 2001

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












<PAGE>

                                TABLE OF CONTENTS

<TABLE>
<CAPTION>
                                                                                       Page
<S>                                                                                    <C>
                                           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
</TABLE>

                                       -i-





<PAGE>

                              DECLARATION OF TRUST
                                       OF
                              BAC CAPITAL TRUST II

         THIS DECLARATION OF TRUST ("Declaration") dated and effective as of
September __, 2001 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 Business 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 business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business 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.




<PAGE>

                  "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.

                  "Business Trust Act" means Chapter 38 of Title 12 of the
                   ------------------
         Delaware Code, 12 Del. Codess.3801 et seq., as it may be amended from
         time to time, or any successor legislation.

                  "Commission" means the Securities and Exchange Commission.
                   ----------

                  "Common Security" mans 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 27, 1996
                   ---------
         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.

                                       2

<PAGE>

                  "Person" means a legal person, including any individual,
                   ------
         corporation, estate, partnership, joint venture, association, joint
         stock company, limited liability company, 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.

                  "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 II."
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, 23/rd/ Floor, Charlotte, North Carolina 28255. At any time,
the Regular Trustees may designate another principal office.

                                       3



<PAGE>

         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;

                                       4

<PAGE>

                           (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, 2001.

         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

                                       5

<PAGE>

        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 Business Trust Act, any Regular Trustee is
        authorized to execute on behalf of the Trust any documents which the
        Regular Trustees have the power

                                        6

<PAGE>

        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 Business 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
Business 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

                                        7

<PAGE>

         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

                                        8

<PAGE>

                  (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

                                        9

<PAGE>

                 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

                                       10

<PAGE>

               criminal proceeding, that such Company Indemnified Person
               believed or 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,

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<PAGE>

             shareholders, members, partners, employees, representatives,
             nominees, 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;

                                       12

<PAGE>

              (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.

                                       13

<PAGE>

         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/ JOHN NICHOLS
                                             ---------------------------------
                                         Name:
                                         Title:


                                         BANK OF AMERICA CORPORATION, as Sponsor



                                         By: /s/ KAREN A. GOSNELL
                                             ---------------------------------
                                         Name: Karen A. Gosnell
                                         Title: Senior Vice President

                                       14

<PAGE>

                                    EXHIBIT A

                              CERTIFICATE OF TRUST

         The undersigned, the trustees of BAC Capital Trust __, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S). 3810,
hereby certify as follows:                                   ---- --

                (a)  The name of the business trust being formed hereby (the
                     "Trust") is "BAC Capital Trust __."

                (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: September ____, 2001



                                            ____________________________________
                                            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:
                                            Title:

                                       15