CAPITAL SECURITIES GUARANTEE AGREEMENT





CAPITAL SECURITIES GUARANTEE AGREEMENT  


BAC Capital Trust VI 55⁄8% Capital Securities


Dated as of March 8, 2005












 


TABLE OF CONTENTS


ARTICLE 1

DEFINITIONS AND INTERPRETATION


SECTION
1.1...... Definitions and
Interpretation.............................................................................. 2


ARTICLE 2

TRUST INDENTURE ACT


SECTION 2.1...... Trust Indenture Act; Application......................................................................... 5

SECTION 2.2...... Lists of Holders of Securities.............................................................................. 5

SECTION 2.3...... Reports by the Capital Securities
Guarantee Trustee............................................ 5

SECTION 2.4...... Periodic Reports to Capital
Securities Guarantee Trustee.................................... 6

SECTION 2.5...... Evidence of Compliance with
Conditions Precedent............................................ 6

SECTION 2.6...... Events of Default; Waiver................................................................................... 6

SECTION 2.7...... Event of Default; Notice..................................................................................... 6

SECTION
2.8...... Conflicting Interests............................................................................................ 6


ARTICLE 3

POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE TRUSTEE


SECTION 3.1...... Powers and Duties of the Capital
Securities Guarantee Trustee............................ 7

SECTION 3.2...... Certain Rights of Capital
Securities Guarantee Trustee......................................... 8

SECTION
3.3...... Not Responsible for
Recitals or Issuance of Capital Securities Guarantee........... 10


ARTICLE 4

CAPITAL SECURITIES GUARANTEE TRUSTEE


SECTION 4.1...... Capital Securities Guarantee
Trustee; Eligibility.................................................. 10

SECTION
4.2...... Appointment, Removal and
Resignation of Capital Securities Guarantee Trustee11


ARTICLE 5

GUARANTEE


SECTION 5.1...... Guarantee........................................................................................................ 12

SECTION 5.2...... Waiver of Notice and Demand......................................................................... 12

SECTION 5.3...... Obligations Not Affected.................................................................................. 12

SECTION 5.4...... Rights of Holders.............................................................................................. 13

SECTION 5.5...... Guarantee of Payment...................................................................................... 13

SECTION 5.6...... Subrogation...................................................................................................... 13

SECTION
5.7...... Independent Obligations................................................................................... 14


ARTICLE 6

LIMITATION OF TRANSACTIONS; SUBORDINATION


SECTION 6.1...... Limitation of Transactions................................................................................. 14

SECTION
6.2...... Ranking............................................................................................................ 14


 


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ARTICLE 7

TERMINATION


SECTION
7.1...... Termination...................................................................................................... 15


ARTICLE 8

INDEMNIFICATION


SECTION 8.1...... Exculpation...................................................................................................... 15

SECTION
8.2...... Indemnification................................................................................................. 15


ARTICLE 9

MISCELLANEOUS


SECTION 9.1...... Successors and Assigns.................................................................................... 16

SECTION 9.2...... Amendments.................................................................................................... 16

SECTION 9.3...... Notices............................................................................................................ 16

SECTION 9.4...... Benefit............................................................................................................. 17

SECTION 9.5...... Governing Law................................................................................................. 17




 

 

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CROSS-REFERENCE
TABLE*


Section of

Trust
Indenture Act                                                            Section
of

of
1939, as amended                                                         Declaration


310(a).....................................................................................       4.1(a)

310(c).....................................................................................       Inapplicable

311(c).....................................................................................       Inapplicable

312(a).....................................................................................       2.2(a)

312(b).....................................................................................       2.2(b)

313.........................................................................................       2.3

314(a).....................................................................................       2.4

314(b).....................................................................................       Inapplicable

314(c).....................................................................................       2.5

314(d).....................................................................................       Inapplicable

314(f)......................................................................................       Inapplicable

315(a).....................................................................................       3.1(d)

315(c).....................................................................................       3.1(c)

315(d).....................................................................................       3.1(d)


_______________


*This Cross-Reference Table does not
constitute part of the Capital Securities Guarantee and shall not affect the
interpretation of any of its terms or provisions.




 


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CAPITAL SECURITIES GUARANTEE AGREEMENT


          This GUARANTEE AGREEMENT (the
"Capital Securities Guarantee"), dated as of March 8, 2005, is executed and
delivered by BANK OF AMERICA CORPORATION, a Delaware corporation (the "Guarantor"),
andTHE BANK OF NEW YORK, a New York banking corporation, as trustee
(the "Capital Securities Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Capital Securities (as defined
herein) of BAC Capital Trust VI, a Delaware statutory trust (the "Issuer").


          WHEREAS, pursuant to an Amended
and Restated Declaration of Trust (the "Declaration"), dated as of February 24,
2005, among the trustees of the Issuer named therein, the Guarantor, as
sponsor, and the holders from time to time of undivided beneficial interests in
the assets of the Issuer, the Issuer is issuing on the date hereof 1,000,000
Capital Securities representing undivided preferred beneficial interests in the
assets of the Issuer, designated the BAC Capital Trust VI 55⁄8% Capital
Securities (the "Capital Securities"), initially in the aggregate liquidation
amount of $1,000,000,000; and


         WHEREAS, as incentive for the
Holders to purchase the Capital Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in this Capital
Securities Guarantee, to pay to the Holders of the Capital Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and


        WHEREAS, the Guarantor also is
executing and delivering a guarantee agreement (the "Common Securities
Guarantee") for the benefit of the holders of the Common Securities (as defined
herein);


       NOW, THEREFORE, in
consideration of the purchase by each Holder of Capital Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Capital Securities Guarantee for the benefit of the
Holders.


ARTICLE 1

DEFINITIONS AND INTERPRETATION


SECTION 1.1  
Definitions and Interpretation.  


                          In this Capital Securities Guarantee, unless the
context otherwise requires:



  

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


(b)        terms
defined in the Declaration as at the date of execution of this Capital
Securities Guarantee have the same meaning when used in this Capital Securities
Guarantee;


 


 


                                                                                          
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(c)        a term
defined anywhere in this Capital Securities Guarantee has the same meaning
throughout;


(d)        all
references to "the Capital Securities Guarantee" or "this Capital Securities
Guarantee" are to this Capital Securities Guarantee as modified, supplemented
or amended from time to time;


(e)        all
references in this Capital Securities Guarantee to Articles and Sections are to
Articles and Sections of this Capital Securities Guarantee, unless otherwise
specified;


(f)         a term
defined in the Trust Indenture Act has the same meaning when used in this
Capital Securities Guarantee, unless otherwise defined in this Capital
Securities Guarantee or unless the context otherwise requires; and


(g)        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 of 1933, as amended, or any successor
rule thereunder.


"Authorized Officer" means the Chief Executive
Officer, President, Chief Financial Officer, any Vice President, Treasurer,
Assistant Treasurer, Associate General Counsel or other Person authorized to
bind a Person.


"Business Day" means 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.


"Capital Securities Guarantee Trustee" meansThe
Bank of New York, a New York banking corporation, until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Capital Securities Guarantee and
thereafter means each such Successor Capital Securities Guarantee Trustee.


"Capital Securities" means the total number of
BAC Capital Trust VI 55⁄8% Capital Securities (liquidation amount $1,000
per Capital Security) issued pursuant to the Declaration representing undivided
preferred beneficial interests in the assets of the Issuer.


"Common Securities" means the securities
representing undivided common beneficial interests in the assets of the Issuer.


"Corporate Trust Office" means the office of the
Capital Securities Guarantee Trustee at which the corporate trust business of
the Capital Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at 101 Barclay Street, 8 West, New York, New York 10286.


"Covered Person" means any Holder or beneficial
owner of Capital Securities.


 


 


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"Event of Default" means a default by the
Guarantor on any of its payments or other obligations under this Capital
Securities Guarantee.


"Guarantee Payments" means the following payments
or distributions, without duplication, with respect to the Capital Securities,
to the extent not paid or made by the Issuer: 
(i) any accrued and unpaid Distributions that are required to be paid on
such Capital Securities to the extent the Issuer shall have funds available
therefor, (ii) the applicable Redemption Price to the extent the Issuer has funds
available therefor, with respect to any Capital Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding‐up or termination of the Issuer (other than in
connection with the distribution of Notes to the Holders in exchange for
Capital Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Capital Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution").  If an Event of Default under, and as defined in, the Indenture
has occurred and is continuing, the rights of holders of the Common Securities
to receive payments under the Common Securities Guarantee are subordinated to
the rights of Holders of Capital Securities to receive Guarantee Payments under
the Capital Securities Guarantee.


"Holder" shall mean any holder, as registered on
the books and records of the Issuer, of any Capital Securities; provided,
however, that in determining whether the holders of the requisite
percentage of Capital Securities have given any request, notice, consent or
waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of
the Guarantor.


"Indemnified Person" means the Capital Securities
Guarantee Trustee, any Affiliate of the Capital Securities Guarantee Trustee,
or any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Capital Securities
Guarantee Trustee.


"Indenture" means the Restated Indenture dated as
of November 1, 2001 between the Guarantor (the "Note Issuer") and The Bank of
New York, as trustee, together with any Board Resolution (as defined in the
Indenture) or any indenture supplemental thereto, pursuant to which certain
subordinated debt securities of the Note Issuer are to be issued to the
Property Trustee (as defined in the Declaration) of the Issuer.


"Majority in liquidation amount of the Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Capital Securities, voting separately as a class, of more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation, dissolution or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Capital Securities.


"Notes" means the series of junior subordinated
debt securities of the Guarantor designated the 55⁄8% Junior Subordinated
Notes, due 2035, held by the Property Trustee of the Issuer on behalf of the
Trust.


 


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"Officers' Certificate" means, with respect to
any Person, a certificate signed by an Authorized Officer of such Person.  Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Capital
Securities Guarantee shall include:


(a)  a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the definition
relating thereto;


(b)        a brief statement of the nature and
scope of the examination or investigation undertaken by each officer in
rendering the Officers' Certificate;


(c)        a statement that each such officer has
made such examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and


(d)        a statement as to whether, in the
opinion of each such officer, such condition or covenant has been complied
with.


"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.


"Responsible Officer" means, with respect to the
Capital Securities Guarantee Trustee, any officer within the Corporate Trust
Office of the Capital Securities Guarantee Trustee, including any vice
president, any assistant vice president, any assistant treasurer or other
officer of the Corporate Trust Office of the Capital Securities Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.


"Successor Capital Securities Guarantee Trustee"
means a successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities Guarantee Trustee under Section
4.1.


"Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended.


"Trust Securities" means the Common Securities
and the Capital Securities.


 


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ARTICLE 2

TRUST INDENTURE ACT


SECTION 2.1  
Trust Indenture Act; Application.  


(a)        This Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Capital Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and


(b)        If and to the extent that any provision of this Capital Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.


SECTION 2.2  
Lists of Holders of Securities.  


            (a)        The Guarantor shall provide the Capital Securities Guarantee
Trustee with a list, in such form as the Capital Securities Guarantee Trustee
may reasonably require, of the names and addresses of the Holders of the
Capital Securities ("List of Holders") as of such date, (i) within 10 days
after each record date, and (ii) at any other time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a date no more
than 10 days before such List of Holders is given to the Capital Securities
Guarantee Trustee; provided that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Capital Securities
Guarantee Trustee by the Guarantor.  The
Capital Securities Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.


(b)        The Capital Securities Guarantee Trustee
shall comply with its obligations under Sections 311(a), 311(b) and Section
312(b) of the Trust Indenture Act.


SECTION 2.3  
Reports by the Capital Securities Guarantee Trustee.  


Within 60 days after March 31 of each year, the Capital
Securities Guarantee Trustee shall provide to the Holders of the Capital
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act.  The Capital Securities
Guarantee Trustee also shall comply with the requirements of Section 313(d) of
the Trust Indenture Act.


SECTION 2.4  
Periodic Reports to Capital Securities Guarantee Trustee.  


The Guarantor shall provide to the Capital Securities
Guarantee Trustee such documents, reports and information, if any, as required
by Section 314 and the compliance certificate required by Section 314 of the
Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.


SECTION 2.5  
Evidence of Compliance with Conditions Precedent.  


The Guarantor shall provide to the Capital Securities Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Capital 


 


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Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act.  Any certificate or opinion required to
be given by an officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.


SECTION 2.6  
Events of Default; Waiver.  


The Holders of a Majority in liquidation amount of the
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences.  Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Capital Securities
Guarantee, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.


SECTION 2.7  
Event of Default; Notice.  


(a)        The Capital Securities Guarantee Trustee shall, within 90
days after the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Capital Securities, notices of all
Events of Default actually known to a Responsible Officer of the Capital
Securities Guarantee Trustee, unless such defaults have been cured before the
giving of such notice, provided that the Capital Securities
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Capital Securities Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders.


(b)        The Capital Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless a Responsible Officer of the
Capital Securities Guarantee Trustee shall have received written notice
thereof, or unless a Responsible Officer of the Capital Securities Guarantee
Trustee charged with the administration of the Declaration shall have obtained
actual knowledge thereof.


SECTION 2.8  
Conflicting Interests. 



The Declaration shall be deemed to be specifically
described in this Capital Securities Guarantee for the purposes of clause (i)
of the first proviso contained in Section 310(b) of the Trust Indenture Act.


ARTICLE 3

POWERS, DUTIES AND RIGHTS OF

CAPITAL SECURITIES GUARANTEE TRUSTEE


SECTION 3.1  
Powers and Duties of the Capital Securities Guarantee
Trustee.  


(a)        This Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders, and the
Capital Securities Guarantee Trustee shall not transfer this Capital Securities
Guarantee to any Person except a Holder of Capital Securities exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Capital Securities
Guarantee Trustee on acceptance by such Successor Capital Securities Guarantee
Trustee of its appointment to act as Successor Capital Securities Guarantee
Trustee.  The right,  


 


 


6


title and interest
of the Capital Securities Guarantee Trustee shall automatically vest in any
Successor Capital Securities Guarantee Trustee, and such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Capital
Securities Guarantee Trustee.


(b)        If an Event of Default actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee has occurred and is
continuing, the Capital Securities Guarantee Trustee shall enforce this Capital
Securities Guarantee for the benefit of the Holders.


(c)        The Capital Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Capital Securities Guarantee, and no implied
covenants shall be read into this Capital Securities Guarantee against the
Capital Securities Guarantee Trustee. 
In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Capital Securities Guarantee Trustee, the Capital Securities Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Capital Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


(d)        No provision of this Capital Securities Guarantee shall be
construed to relieve the Capital Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:


(i)         prior to
the occurrence of any Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:




(A)       the duties
and obligations of the Capital Securities Guarantee Trustee shall be determined
solely by the express provisions of this Capital Securities Guarantee, and the
Capital Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Capital Securities Guarantee, and no implied covenants or obligations
shall be read into this Capital Securities Guarantee against the Capital
Securities Guarantee Trustee; and


(B)       in the
absence of bad faith on the part of the Capital Securities Guarantee Trustee,
the Capital Securities Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Capital Securities Guarantee Trustee
and conforming to the requirements of this Capital Securities Guarantee; but in
the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Capital Securities Guarantee
Trustee, the Capital Securities Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Capital Securities Guarantee;


 


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(ii)        the
Capital Securities Guarantee Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Capital Securities Guarantee
Trustee, unless it shall be proved that the Capital Securities Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;


(iii)       the Capital Securities Guarantee
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of
not less than a Majority in liquidation amount of the Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Capital Securities Guarantee Trustee, or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Capital Securities Guarantee; and


(iv)       no
provision of this Capital Securities Guarantee shall require the Capital
Securities Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Capital Securities Guarantee
Trustee shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Capital Securities Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or liability is not
reasonably assured to it.


SECTION 3.2  
Certain Rights of Capital Securities Guarantee Trustee.  


(a)        Subject to the provisions of Section 3.1:


(i)         The
Capital Securities Guarantee Trustee may rely conclusively, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.


(ii)        Any
direction or act of the Guarantor contemplated by this Capital Securities
Guarantee shall be sufficiently evidenced by an Officers' Certificate.


(iii)       Whenever, in the administration of this
Capital Securities Guarantee, the Capital Securities Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.


(iv)       The
Capital Securities Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or re-registration thereof).


 


 


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(v)        The
Capital Securities Guarantee Trustee may consult with counsel of its selection,
and the advice or opinion of such counsel with respect to legal matters shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance with
such advice or opinion.  Such counsel
may be counsel to the Guarantor or any of its Affiliates and may include any of
its employees.  The Capital Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Capital Securities Guarantee from any
court of competent jurisdiction.


(vi)       The
Capital Securities Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Capital Securities Guarantee
at the request or direction of any Holder, unless such Holder shall have
provided to the Capital Securities Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Capital Securities Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Capital Securities Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Capital Securities Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Capital Securities Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Capital Securities
Guarantee.


(vii)      The Capital Securities Guarantee Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital Securities Guarantee
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.


(viii)      The Capital Securities Guarantee Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees, custodians or attorneys, and
the Capital Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.


(ix)       Any action
taken by the Capital Securities Guarantee Trustee or its agents hereunder shall
bind the Holders of the Capital Securities, and the signature of the Capital
Securities Guarantee Trustee or its agents alone shall be sufficient and effective
to perform any such action.  No third
party shall be required to inquire as to the authority of the Capital
Securities Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Capital Securities Guarantee Trustee's or its
agent's taking such action.


(x)        Whenever
in the administration of this Capital Securities Guarantee the Capital
Securities Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Capital  


 


 


9


Securities Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the
Securities, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions.


(xi)       The
Capital Securities Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Capital Securities Guarantee.


(b)        No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation.  No permissive power or authority available
to the Capital Securities Guarantee Trustee shall be construed to be a duty.


SECTION 3.3  
Not Responsible for Recitals or Issuance of Capital
Securities Guarantee.  


The recitals contained in this Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their
correctness.  The Capital Securities
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Capital Securities Guarantee.


ARTICLE 4

CAPITAL SECURITIES GUARANTEE TRUSTEE


SECTION 4.1  
Capital Securities Guarantee Trustee; Eligibility.  


(a)        There shall at all times be a Capital Securities Guarantee
Trustee which shall:


(i)         not be an
Affiliate of the Guarantor; and


(ii)        be a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange Commission to
act as a trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. 
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this Section 4.1(a)(ii),
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.


 


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(b)        If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).


       (c)        If the Capital Securities Guarantee
Trustee has or shall acquire  any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.


SECTION 4.2  
Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee.  


(a)        Subject to Section 4.2(b), the Capital Securities Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default.


(b)        The Capital Securities Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Capital Securities Guarantee
Trustee and delivered to the Guarantor.


(c)        The Capital Securities Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Capital Securities Guarantee Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor
Capital Securities Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Capital
Securities Guarantee Trustee and delivered to the Guarantor and the resigning
Capital Securities Guarantee Trustee.


(d)        If no Successor Capital Securities Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation, the
Capital Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Capital
Securities Guarantee Trustee.  Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Capital Securities Guarantee Trustee.


(e)        No Capital Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Capital Securities Guarantee
Trustee.


(f)         Upon termination of this Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts accrued to the date of such termination, removal or
resignation.


 


 


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ARTICLE 5

GUARANTEE


SECTION 5.1  
Guarantee.  


The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set‐off or counterclaim that the Issuer may have or
assert.  The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.


SECTION 5.2  
Waiver of Notice and Demand.  


The Guarantor hereby waives notice of acceptance of this
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.


SECTION 5.3  
Obligations Not Affected.  


The obligations, covenants, agreements and duties of the
Guarantor under this Capital Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:


(a)        the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital Securities to be
performed or observed by the Issuer;


(b)        the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Capital Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Capital Securities (other than an extension
of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Notes or any extension of the maturity date of
the Notes permitted by the Indenture);


(c)        any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;


(d)        the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;


 


 


12


(e)        any invalidity of, or defect or deficiency in, the Capital
Securities;


(f)         any failure or omission to receive any regulatory approval
or consent required in connection with the Common Securities or Capital
Securities, including the failure to receive any approval of the Board of
Governors of the Federal Reserve System required in connection with the Capital
Securities;


(g)        the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or


(h)        any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.


There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.


SECTION 5.4  
Rights of Holders. 



(a)        The Holders of a Majority in liquidation amount of the
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Capital Securities Guarantee
Trustee in respect of this Capital Securities Guarantee or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Capital Securities Guarantee.


(b)        If the Capital Securities Guarantee Trustee fails to enforce
such Capital Securities Guarantee, any Holder of Capital Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Capital Securities Guarantee Trustee's rights under this Capital Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Capital Securities Guarantee Trustee or any other person or entity.  The Guarantor waives any right or remedy to
require that any action be brought first against the Issuer or any other person
or entity before proceeding directly against the Guarantor.


SECTION 5.5  
Guarantee of Payment. 



This Capital Securities Guarantee creates a guarantee of
payment and not of collection.


SECTION 5.6  
Subrogation.  


The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Capital Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Capital Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Capital Securities
Guarantee.  If any amount 


 


 


13


shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.


SECTION 5.7  
Independent Obligations.  


The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Capital Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Capital Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3 hereof.


ARTICLE 6

LIMITATION OF TRANSACTIONS; SUBORDINATION


SECTION 6.1  
Limitation of Transactions.  


So long as any Capital Securities remain outstanding, if
there shall have occurred and be continuing an Event of Default under this
Capital Securities Guarantee, an Event of Default or a Nonpayment under the
Declaration or during an Extended Interest Payment Period (as defined in the
Indenture), then (a) the Guarantor 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 Guarantor of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of the Guarantor's capital stock
or the exchange or conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock, or (iii)
the purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to an acquisition or the conversion or exchange provisions of such
capital stock of the Guarantor or the security being converted or exchanged) or
make any guarantee payments with respect to the foregoing or (b) the
Guarantor 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 Guarantor which rank pari passu with or junior to the Notes.


SECTION 6.2  
Ranking.  


This Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities, including contingent liabilities,
of the Guarantor, (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred securities
(including trust preferred securities) or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.


 


 


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ARTICLE 7

TERMINATION


SECTION 7.1  
Termination.  


This Capital Securities Guarantee shall terminate upon
(i) full payment of the Redemption Price of all Capital Securities, (ii) upon
the distribution of the Notes to the Holders of all of the Capital Securities,
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation or dissolution of the Issuer.  Notwithstanding the foregoing, this Capital
Securities Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums
paid under the Capital Securities or under this Capital Securities Guarantee.


ARTICLE 8

INDEMNIFICATION


SECTION 8.1  
Exculpation.  


            (a)        No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Capital Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Capital Securities Guarantee 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 negligence or willful
misconduct with respect to such acts or omissions.


            (b)        An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor 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 Guarantor, 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 Capital Securities
might properly be paid.


SECTION 8.2  
Indemnification. 



The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against, any and all
loss, liability, damage, claim 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 8.2 shall survive the termination of this Capital Securities
Guarantee.


 


 


15


ARTICLE 9

MISCELLANEOUS


SECTION 9.1  
Successors and Assigns.  


All guarantees and agreements contained in this Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding.


SECTION 9.2  
Amendments.  


Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Capital Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all the outstanding Capital Securities.  The provisions of Section 12.2 of the
Declaration with respect to meetings of holders of the Securities apply to the
giving of such approval.


SECTION 9.3  
Notices.  


All notices provided for in this Capital Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:


            (a)        If given to the Capital Securities
Guarantee Trustee, at the Capital Securities Guarantee Trustee's mailing
address set forth below (or such other address as the Capital Securities
Guarantee Trustee may give notice of to the Holders):



  

The Bank of New York

101 Barclay Street, 8 West

New York, New York 10286

Attention:  Corporate Trust Trustee Administration

Facsimile:  (904) 645-1921


  




(b)        If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Capital Securities):



  

Bank of America Corporation

Bank of America Corporate Center

100 North Tryon Street

NC1-007-07-06

Charlotte, North Carolina 28255

Attention:  Corporate Treasury

Facsimile:  (704) 386-0270


  




 


 


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(c)        If given to any Holder of Capital
Securities, at the address set forth on the books and records of the Issuer.


All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.


SECTION 9.4  
Benefit.  


This Capital Securities Guarantee is solely for the
benefit of the Holders of the Capital Securities and, subject to Section
3.1(a), is not separately transferable from the Capital Securities.


SECTION 9.5  
Governing Law.  


THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


[Signature
page follows.]


























 


























 


























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THIS CAPITAL SECURITIES GUARANTEE is executed as of the
day and year first above written.


 






                                                                                  BANK OF AMERICA
CORPORATION, as Guarantor



                                                                                  By:  
/s/ JAMES T. HOUGHTON

                                                                                  Name:    James
T. Houghton

                                                                                  Title:     Senior
Vice President



                                                                                  THE
BANK OF NEW YORK, as Capital Securities

                                                                                  Guarantee Trustee



                                                                                 By:
/s/ DEREK KETTEL

                                                                                 Name: 
Derek Kettel

                                                                                 Title: 
Vice President 






 






 






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