Amended and Restated Declaration of Trust


 

                                           
EXHIBIT 4.4

 

_________________________________________

AMENDED AND RESTATED DECLARATION

OF TRUST

BAC CAPITAL TRUST I

Dated as of December 6, 2001

_________________________________________







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CROSS-REFERENCE TABLE*

Section of

Trust Indenture Act                                                                    
Section of

of 1939, as amended                                                                
Declaration

310(a) ..........................................................................................5.3(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) ............................................................................................3.9(b)

315(c) ............................................................................................3.9(a)

315(d) ............................................................................................3.9(b)

316(a) ............................................................................................Annex
I

316(c) .............................................................................................3.6(e)

_______________

* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or provions.

 

 

 

 

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ARTICLE 1

                                           
INTERPRETATION AND DEFINITIONS

SECTION 1.1    Definitions..................................................................................................
1

                                                                    
ARTICLE 2

                                                      
TRUST INDENTURE ACT

SECTION 2.1    Trust Indenture Act; Application...................................................................
9

SECTION 2.2    Lists of Holders of Securities ........................................................................9

SECTION 2.3    Reports by the Property Trustee ...................................................................9

SECTION 2.4    Periodic Reports to Property Trustee
 ...........................................................10

SECTION 2.5    Evidence of Compliance with Conditions
Precedent ......................................10

SECTION 2.6    Events of Default; Waiver .............................................................................10

SECTION 2.7    Event of Default or Nonpayment Notice
 .......................................................11


ARTICLE 3

ORGANIZATION

SECTION 3.1    Name ..........................................................................................................12

SECTION 3.2    Office ..........................................................................................................12

SECTION 3.3    Purpose .......................................................................................................12

SECTION 3.4    Authority ......................................................................................................12

SECTION 3.5    Title to Property of the Trust .........................................................................13

SECTION 3.6    Powers and Duties of the Regular Trustees
 ....................................................13

SECTION 3.7    Prohibition of Actions by the Trust and
the Trustees .......................................15

SECTION 3.8    Powers and Duties of the Property Trustee
 ....................................................16

SECTION 3.9    Certain Duties and Responsibilities of
the Property Trustee ............................18

SECTION 3.10    Certain Rights of Property Trustee...............................................................20

SECTION 3.11    Delaware Trustee........................................................................................22

SECTION 3.12    Execution of Documents .............................................................................22

SECTION 3.13    Not Responsible for Recitals or Issuance
of Securities..................................22

SECTION 3.14    Duration of Trust........................................................................................
22

SECTION 3.15    Mergers.....................................................................................................
22

ARTICLE 4

SPONSOR


SECTION 4.1    Sponsor's Purchase of Common Securities....................................................24

SECTION 4.2    Responsibilities of the Sponsor.......................................................................24

SECTION 4.3    Covenants of the Sponsor .............................................................................25


ARTICLE 5

TRUSTEES


SECTION 5.1    Number of Trustees ......................................................................................25

SECTION 5.2    Qualifications of Delaware Trustee ................................................................25

SECTION 5.3    Property Trustee; Eligibility.............................................................................26

 

 

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i

SECTION 5.4    Certain Qualifications of Regular Trustees
and Delaware Trustee Generally ....26

SECTION 5.5    Regular Trustees ...........................................................................................27

SECTION 5.6    Appointment of Delaware Trustee .................................................................27

SECTION 5.7    Appointment, Removal and Resignation
of Trustees........................................27

SECTION 5.8    Vacancies among Trustees ............................................................................29

SECTION 5.9    Effect of Vacancies .......................................................................................29

SECTION 5.10    Meetings ....................................................................................................29

SECTION 5.11    Delegation of Power ...................................................................................29

SECTION 5.12    Merger, Conversion, Consolidation, Amalgamation
or Succession to

                           
Business ....................................................................................................30


ARTICLE 6

DISTRIBUTIONS

SECTION 6.1    Distributions ..................................................................................................30

ARTICLE 7

ISSUANCE OF SECURITIES


SECTION 7.1    General Provisions Regarding Securities
 .........................................................30

SECTION 7.2    Paying Agent .................................................................................................31


ARTICLE 8

TERMINATION OF TRUST


SECTION 8.1    Termination of Trust .......................................................................................32


ARTICLE 9

TRANSFER OF INTERESTS


SECTION 9.1    Transfer of Securities ......................................................................................33

SECTION 9.2    Transfer of Certificates.....................................................................................33

SECTION 9.3    Deemed Security Holders ................................................................................33

SECTION 9.4    Book-Entry Interests.........................................................................................34

SECTION 9.5    Notices to Clearing Agency ..............................................................................34

SECTION 9.6    Appointment of Successor Clearing Agency.......................................................34

SECTION 9.7    Definitive Capital Security Certificates................................................................35

SECTION 9.8    Mutilated, Destroyed, Lost or Stolen
Certificates................................................35


ARTICLE 10

LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS


SECTION 10.1    Liability............................................................................................................36

SECTION 10.2    Exculpation .....................................................................................................36

SECTION 10.3    Fiduciary Duty..................................................................................................37

SECTION 10.4    Indemnification..................................................................................................38

SECTION 10.5    Outside Businesses............................................................................................40

 

 

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ARTICLE 11

ACCOUNTING


SECTION 11.1    Fiscal Year.......................................................................................................41

SECTION 11.2    Certain Accounting Matters...............................................................................41

SECTION 11.3    Banking ............................................................................................................41

SECTION 11.4    Withholding.......................................................................................................42


ARTICLE 12

AMENDMENTS AND MEETINGS


SECTION 12.1    Amendments .......................................................................................................42

SECTION 12.2    Meetings of the Holders of Securities;
Action by Written Consent..........................44


ARTICLE 13

REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE


SECTION 13.1    Representations and Warranties of Property
Trustee .............................................45

SECTION 13.2    Representations and Warranties of Delaware
Trustee ............................................46


ARTICLE 14

MISCELLANEOUS


SECTION 14.1    Notices ...................................................................................................................46

SECTION 14.2    Governing Law .......................................................................................................48

SECTION 14.3    Intention of the Parties..............................................................................................48

SECTION 14.4    Headings..................................................................................................................48

SECTION 14.5    Successors and Assigns ...........................................................................................48

SECTION 14.6    Partial Enforceability.................................................................................................48

SECTION 14.7    Counterparts; Acceptance .......................................................................................48

 

 

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AMENDED AND RESTATED

DECLARATION OF TRUST

OF

BAC CAPITAL TRUST I


        THIS AMENDED AND RESTATED
DECLARATION OF TRUST ("Declaration") dated and effective as of December
6, 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 assets of the Trust to be issued pursuant to this Declaration;

        WHEREAS, the Trustees and
the Sponsor established BAC CAPITAL TRUST I (the "Trust"), a trust under
the Business Trust Act (as defined herein), pursuant to a Declaration of
Trust dated as of September 26, 2001 (the "Original Declaration"), and
an accompanying Certificate of Trust filed with the Secretary of State
of the State of Delaware, for the sole purpose of issuing and selling securities
representing undivided beneficial interests in the assets of the Trust
and investing the gross proceeds thereof in Notes of the Note Issuer (each
as defined herein);

        WHEREAS, as of the date hereof,
no interests in the Trust have been issued;

        WHEREAS, all of the Trustees
and the Sponsor, by this Declaration, amend and restate each and every
term and provision of the Original Declaration; and

        NOW, THEREFORE, it being
the intention of the parties hereto to continue the Trust as 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 benefit
of the holders, from time to time, of the securities representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject
to the provisions of this Declaration.

                                                                         
ARTICLE I

                                          
INTERPRETATION AND DEFINITIONS

        SECTION 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;

        (c) all references to "the
Declaration" or "this Declaration" are to this Declaration as modified,
supplemented or amended from time to time, and Annex I, Annex I-A and Exhibits
A-1 and A-2 shall be a part of this Declaration;

 

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

        (e) a term defined in the
Trust Indenture Act (as defined herein) has the same meaning when used
in this Declaration unless otherwise defined in this Declaration; and

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

"Additional Securities" means any Capital Securities purchased
by the Underwriters in connection with the Option contained in the Underwriting
Agreement and any additional Common Securities purchased by the Sponsor
in connection with the exercise of such Option.

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

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

"Book-Entry" means a book entry by a Clearing Agency as described
in Section 9.4.

"Book-Entry Interest" means a beneficial interest in a Global
Security, ownership and transfers of which shall be maintained and made
through Book Entries by a Clearing Agency as described in Section 9.4.

"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.

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

"Capital Securities" shall mean the undivided preferred beneficial
interests in the assets of the Trust denominated as "BAC Capital Trust
I 7% Capital Securities," (liquidation amount $25 per Capital Security)
the terms of which are further described in Annex I hereto, including those
Capital Securities issued upon exercise of the Option.

"Capital Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly
as a Clearing Agency Participant or as an Indirect Participant, in each
case in accordance with the rules of such Clearing Agency).

"Capital Security Certificate" means a certificate representing
a Capital Security substantially in the form of Exhibit A-1.

 

 

 

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2

"Capital Securities Guarantee" means the guarantee agreement
to be dated as of December 14, 2001, of the Sponsor in respect of the Capital
Securities.

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

"Certificate" means a Common Security Certificate or a Capital
Security Certificate.

"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee
of that organization shall be registered a Global Security and which shall
undertake to effect Book-Entry transfers and pledges of the Capital Securities.

"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects Book-Entry transfers and pledges of securities deposited
with the Clearing Agency.

"Closing Date" means the "Closing Time" under the Underwriting
Agreement.

"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.

"Commission" means the Securities and Exchange Commission.

"Common Securities" shall mean the undivided common beneficial
interests in the assets of the Trust denominated as "BAC Capital Trust
I 7% Common Securities," (liquidation amount $25 per Security) the terms
of which are further described in Annex I hereto, including those Common
Securities purchased by the Sponsor upon exercise of the Option.

"Common Securities Guarantee" means the guarantee agreement to
be dated as of December 14, 2001, of the Sponsor in respect of the Common
Securities.

"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in
the form of Exhibit A-2 hereto.

"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees,

 

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3

representatives or agents of any Regular Trustee; or (d) any officer,
employee or agent of the Trust or its Affiliates.

"Corporate Trust Office" means the office of the Property Trustee
at which the corporate trust business of the Property 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, Floor
21 West, New York, New York 10286.

"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.

"Definitive Capital Security Certificates" has the meaning set
forth in Section 9.4.

"Delaware Trustee" has the meaning set forth in Section 5.1.

"Depositary" means The Depository Trust Company or any successor
Clearing Agency.

"Designation of Terms" has the meaning set forth in Section 7.1(a).

"Direct Action" has the meaning specified in Section 3.8(e).

"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.

"Event of Default" in respect of the Securities means an Event
of Default (as defined in the Indenture) has occurred and is continuing
in respect of the Notes.

"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
10.4(b).

"Global Security" has the meaning set forth in Section 9.4.

"Holder" means a Person in whose name a Security is registered
(including, in the case of a Book-Entry Security, the Depositary), such
Person being a beneficial owner within the meaning of the Business Trust
Act.

"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.

 

 

 

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4

"Indenture" means collectively the restated Indenture dated as
of November 1, 2001, between the Note Issuer and the Note Trustee and any
board resolution or supplemental indenture pursuant to which the Notes
are to be issued.

"Indirect Participant" has the meaning set forth in Section 2(c)
of Annex I hereto.

"Investment Company" means an investment company as defined in
the Investment Company Act.

"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.

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

"Legal Action" has the meaning set forth in Section 3.6(g).

"Majority in liquidation amount of the Securities" means, except
as provided in the terms of the Capital Securities or by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital Securities
or Holders of outstanding Common Securities voting separately as a class,
who are the record owners of more than 50% of the aggregate 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 outstanding Securities of
the relevant class.

"Maturity Redemption Price" shall mean, for a redemption of the
Securities at the Stated Maturity of the Notes, a redemption price equal
to the principal amount of, plus accrued interest on, the Notes.

"Nonpayment" has the meaning set forth in Section 2.7(a).

"Note Issuer" means Bank of America Corporation, a Delaware corporation,
or any successor entity in a merger or consolidation, in its capacity as
issuer of the Notes under the Indenture.

"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.

"Notes" means the series of Notes to be issued by the Note Issuer
under the Indenture to be held by the Property Trustee on behalf of the
Trust.

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

 


        (a) a statement that each
officer signing the certificate has read the covenant or condition and
the definitions relating thereto;


 

 

 
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5

 

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



"Option" means the option to purchase up to 3,000,000 additional
Capital Securities granted to the Underwriters named in an Underwriting
Agreement.

"Optional Prepayment Price" shall mean with respect to the Notes,
a prepayment price equal to 100% of the outstanding principal amount of
the Notes to be prepaid, plus any accrued and unpaid interest thereon up
to but excluding the date of such prepayment.

"Optional Redemption Price" shall mean with respect to the Securities
to be redeemed, a redemption price equal to the Optional Prepayment Price.

"Paying Agent" has the meaning specified in Section 7.2.

"Payment Amount" has the meaning set forth in Section 6.1.

"Person" means 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.

"Property Trustee" means the Trustee with the powers described
in Article 3 and elsewhere herein and meeting the eligibility requirements
set forth in Section 5.3.

"Property Trustee Account" has the meaning set forth in Section
3.8(c).

"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.

"Redemption/Distribution Notice" means a notice of any redemption
of, or a notice of any distribution of, Notes in exchange for Securities.

"Redemption Price" shall mean any or all of the Maturity Redemption
Price, the Special Event Redemption Price and the Optional Redemption Price.

"Regular Trustee" has the meaning set forth in Section 5.1.

 

 

 

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"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly-owned subsidiary of the Sponsor or any other Person
that owns, directly or indirectly, 100% of the outstanding voting securities
of the Sponsor.

"Responsible Officer" means, with respect to the Property Trustee,
any officer within the Corporate Trust Office of the Property Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Property 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.

"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.

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

"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.

"Securities Guarantees" means the Common Securities Guarantee
and the Capital Securities Guarantee.

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

"Special Event Prepayment Price" shall mean with respect to the
Notes, a prepayment price equal to 100% of the outstanding principal amount
of the Notes, plus any accrued and unpaid interest thereon so prepaid up
to but excluding the date of prepayment.

"Special Event Redemption Price" shall mean with respect to the
Securities, a redemption price equal to the Special Event Prepayment Price.

"Sponsor" means Bank of America Corporation, a Delaware corporation,
or any successor entity in a merger or consolidation, in its capacity as
sponsor of the Trust.

"Stated Maturity" shall mean December 15, 2031, the date on which
the Notes shall mature, unless (a) previously prepaid or redeemed or (b)
that date has been extended.

"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b)(ii).

"Successor Entity" has the meaning set forth in Section 3.15(b)(i).

"Successor Property Trustee" has the meaning set forth in Section
5.7(b)(i).

"Successor Securities" has the meaning set forth in Section 3.15(b)(i)(B).

"Super Majority" has the meaning set forth in Section 2.6(a)(ii).

 

 

 

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

"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital Securities
or Holders of outstanding Common Securities voting separately as a class,
who are the record owners of 10% or more of the aggregate 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 outstanding Securities of
the relevant class.

"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).

"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.

"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.

"Underwriting Agreement" means the Underwriting Agreement for
the offering and sale of the Capital Securities and related Capital Securities
Guarantee among the Sponsor, the Trust and the Underwriters named therein.

 

 

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8

 

                                                                   
ARTICLE 2

                                                  
TRUST INDENTURE ACT

SECTION 2.1  Trust Indenture Act; Application.


 

    (a) This Declaration is subject to the provisions
of the Trust Indenture Act that are required to be part of this Declaration
and shall, to the extent applicable, be governed by such provisions.
    (b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.

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

    (d) The application of the Trust Indenture Act to
this Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of
the Trust.

 
SECTION 2.2  Lists of Holders of Securities.


 
            (a)
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide the Property Trustee (i) within 10 days after each record date
for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided,
that
neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
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 Property
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust,
and (ii) at any other time, within 30 days of receipt by the Trust 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 Property Trustee. The Property
Trustee shall preserve, in as current a form as is reasonably practicable,
all information contained in Lists of Holders given to it or which it receives
in the capacity as Paying Agent (if acting in such capacity) provided,
that
the Property Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
        (b) The Property Trustee
shall comply with its obligations under Sections 311(a), 311(b) and 312(b)
of the Trust Indenture Act.

SECTION 2.3.  Reports by the Property Trustee.

            Within
60 days after March 31 of each year, the Property 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 Property
Trustee shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.

 

 

 

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SECTION 2.4  Periodic Reports to Property Trustee.

            Each
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide
to the Property Trustee such documents, reports and information as required
by Section 314 (if any) 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.

            Each
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration 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.

            (a)
The Holders of a Majority in liquidation amount of Capital Securities may,
by vote, on behalf of the Holders of all of the Capital Securities, waive
any past Event of Default in respect of the Capital Securities and its
consequences, provided that, if the underlying Event of Default
under the Indenture:

 


       (i) is not waivable under the
Indenture, the Event of Default under the Declaration shall not be waivable;
or
        (ii) requires the consent
or vote of greater than a majority in principal amount of the holders of
the Notes (a "Super Majority") to be waived under the Indenture, the Event
of Default under the Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Notes outstanding.

 
        The foregoing provisions of
this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Declaration and the Securities,
as permitted by the Trust Indenture Act. Upon such waiver, any such default
shall cease to exist, and any Event of Default with respect to the Capital
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other default or an Event of Default with respect to the Capital Securities
or impair any right consequent thereon. Any waiver by the Holders of the
Capital Securities of an Event of Default with respect to the Capital Securities
also shall be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common Securities
for all purposes of this Declaration without any further act, vote, or
consent of the Holders of the Common Securities.


 
        (b) The Holders of a Majority
in liquidation amount of the Common Securities may, by vote, on behalf
of the Holders of all of the Common Securities, waive

 
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10

any past Event of Default with respect to the Common Securities and
its consequences, provided that, if the underlying Event of Default
under the Indenture:


 

        (i) is not waivable under
the Indenture, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as provided
below in this Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; or
        (ii) requires the consent
or vote of the holders of a Super Majority of the Notes to be waived under
the Indenture, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as provided
below in this Section 2.6(b), the Event of Default under the Declaration
only may be waived by the vote of the Holders of at least the proportion
in liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Notes outstanding;

 
provided further, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of Default
with respect to the Common Securities and its consequences until all Events
of Default with respect to the Capital Securities have been cured, waived
or otherwise eliminated, and until such Events of Default with respect
to the Capital Securities have been so cured, waived or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on behalf of the
Holders of the Capital Securities and only the Holders of the Capital Securities
will have the right to direct the Property Trustee in accordance with the
terms of the Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver by the Holders of the
Common Securities, any such default shall cease to exist and any Event
of Default with respect to the Common Securities arising therefrom shall
be deemed to have been cured for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or Event
of Default with respect to the Common Securities or impair any right consequent
thereon.


 
            (c)
A waiver of an Event of Default under the Indenture by the Property Trustee
at the direction of the Holders of the Capital Securities constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section 
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7  Event of Default or Nonpayment Notice.

            (a)
The Property Trustee shall, within 90 days after the occurrence of an Event
of Default or a nonpayment of principal, premium, if any, or interest,
when due, on the Notes ("Nonpayment") transmit by mail, first class postage
prepaid, to the Holders of the

 

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11

Securities, notices of all Events of Default or Nonpayments with respect
to the Securities actually known to a Responsible Officer of the Property
Trustee, unless such Events of Default or Nonpayments have been cured before
the giving of such notice;

            (b)
The Property Trustee shall not be deemed to have knowledge of any default
except:

 


        (i) an Event of Default
under the Indenture or a Nonpayment; or


 

        (ii) any default as to which
the Property Trustee shall have received written notice or of which a Responsible
Officer of the Property Trustee charged with the administration of the
Declaration shall have actual knowledge.
                                                                    
ARTICLE 3
                                                                        
ORGANIZATION

SECTION 3.1  Name.

        The Trust is named "BAC Capital
Trust I," as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Securities. The Trust's
activities may be conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.

SECTION 3.2  Office.


 
        The address of the principal
office of the Trust is c/o Bank of America Corporation, Attention: Corporate
Treasury, Bank of America Corporate Center, NC1-007-23-01, 100 North Tryon
Street, Charlotte, North Carolina 28255. On ten Business Days' written
notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3  Purpose.


 
        The exclusive purposes and functions
of the Trust are (a) to issue and sell 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 3.4  Authority.


 
        Subject to the limitations provided
in this Declaration and to the specific duties of the Property Trustee,
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, and an action taken by the Property Trustee on behalf of
the Trust in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf
of the Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the

 

 
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12

Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.

SECTION 3.5  Title to Property of the Trust.


 
        Except as provided in Section
3.8 with respect to the Notes and the Property Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the Trust shall
be vested in the Trust. The Holders shall not have legal title to any part
of the assets of the Trust, but shall have an undivided beneficial interest
in the assets of the Trust.
SECTION 3.6  Powers and Duties of the Regular Trustees.


 
        The Regular Trustees shall have
the exclusive power, duty and authority to cause the Trust to engage in
the following activities:

 

           
(a) to issue and sell the Capital Securities and the Common Securities
in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Capital 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 Securities shall be limited to a simultaneous issuance
of both Capital Securities and Common Securities on the Closing Date;
            (b)
in connection with the issue and sale of the Capital 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, pertaining to the Capital Securities;


 

         (ii) execute and file
any documents prepared by the Sponsor, or take any acts as determined by
the Sponsor to be necessary in order to qualify or register all or part
of the Capital Securities in any State in which the Sponsor has determined
to qualify or register such Capital Securities for sale;


 

        (iii) to determine whether
to list Capital Securities and to execute and file applications, prepared
by the Sponsor, to any national or international stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any Capital
Securities;


 

        (iv) (a) execute and file
with the Commission registration statements on Form 8-A, if required, including
any amendments thereto, prepared by the Sponsor, relating to the registration
of the Capital Securities under Section 12(b) of the Exchange Act and (b)
execute and file with the Commission any other filings which may be required
under the Exchange Act; and


 

        (v) from time to time execute
and enter into Underwriting Agreements providing for the sale of the Capital
Securities;


 

 

 
<Page>                                                                         
13

 

        (c) to purchase the Notes
with the proceeds of the sale of the Capital Securities and the Common
Securities;
        (d) to give the Sponsor and
the Property Trustee prompt written notice of the occurrence of a Special
Event;

        (e) to establish a record
date with respect to all actions to be taken hereunder that require a record
date be established, including and with respect to, for the purposes of
Section 316(c) of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders
of Capital Securities and Holders of Common Securities as to such actions
and applicable record dates;

        (f) to take all actions and
perform such duties as may be required of the Regular Trustees pursuant
to the terms of the Securities;

        (g) to bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action");

        (h) to employ or otherwise
engage employees and agents (who may be designated as officers with titles)
and managers, contractors, advisors, and consultants and pay reasonable
compensation for such services;

        (i) to cause the Trust to
comply with the Trust's obligations under the Trust Indenture Act;

        (j) to give the certificate
required by Section 314(a)(4) of the Trust Indenture Act to the Property
Trustee, which certificate may be executed by any Regular Trustee;

        (k) to incur expenses that
are necessary or incidental to carry out any of the purposes of the Trust;

        (l) to act as, or appoint
another Person to act as, registrar and transfer agent for the Securities;

        (m) to give prompt written
notice to the Holders of the Securities of any notice received from the
Note Issuer of its election to defer payments of interest on the Notes
by extending the interest payment period under the Indenture;

        (n) 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;

        (o) to take all action that
may be necessary or appropriate for the preservation and the continuation
of the Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to protect
the limited liability

 

<Page>                                                         
14

of the Holders of the Capital Securities or to enable the Trust to effect
the purposes for which the Trust was created;

        (p) to take any action, not
inconsistent with this Declaration or with applicable law, that the Regular
Trustees determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section 3.6,
including, but not limited to:

 


           
(i) causing the Trust not to be deemed to be an Investment Company required
to be registered under the Investment Company Act;


 

           
(ii) causing the Trust to be classified for United States federal income
tax purposes as a grantor trust; and


 

           
(iii) cooperating with the Note Issuer to ensure that the Notes will be
treated as indebtedness of the Note Issuer for United States federal income
tax purposes,


provided that such action does not adversely affect
the interests of Holders; and

        (q) to take all action necessary
to cause all applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly prepared and
filed by the Regular Trustees, on behalf of the Trust.

 
            The
Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Regular Trustees shall not take any action
that is inconsistent with the purposes and functions of the Trust set forth
in Section 3.3.


 
            Subject
to this Section 3.6, the Regular Trustees shall have none of the powers
or the authority of the Property Trustee set forth in Section 3.8.

 
            Any
expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Note Issuer.
SECTION 3.7  Prohibition of Actions by the Trust and the
Trustees.


 

        (a) The Trust shall not,
and the Trustees (including the Property Trustee) shall not, engage in
any activity other than as required or authorized by this Declaration.
In particular, the Trust shall not and the Trustees (including the Property
Trustee) shall cause the Trust not to:

 

 

 
<Page>                                                                 
15

 

 

        (i) invest any proceeds
received by the Trust from holding the Notes, but shall distribute all
such proceeds to Holders of Securities pursuant to the terms of this Declaration
and of the Securities;


 

        (ii) acquire any assets
other than as expressly provided herein;


 

 

 

 

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15


 

        (iii) possess Trust property
for other than a Trust purpose;


 

        (iv) make any loans or incur
any indebtedness other than loans represented by the Notes;


 

        (v) possess any power or
otherwise act in such a way as to vary the Trust assets or the terms of
the Securities in any way whatsoever;


 

        (vi) issue any securities
or other evidences of beneficial ownership of, or beneficial interest in,
the Trust other than the Securities; or


 

        (vii) other than as provided
in this Declaration, (A) direct the time, method and place of exercising
any trust or power conferred upon the Note Trustee with respect to the
Notes, (B) waive any past default that is waivable under the Indenture,
(C) exercise any right to rescind or annul any declaration that the principal
of all the Notes shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Notes where such consent
shall be required unless the Trust shall have received an opinion of counsel
to the effect that such modification will not cause more than an insubstantial
risk that for United States federal income tax purposes the Trust will
not be classified as a grantor trust.


SECTION 3.8  Powers and Duties of the Property Trustee.

        (a) The legal title to the
Notes shall be owned by and held of record in the name of the Property
Trustee in trust for the benefit of the Holders of the Securities. The
right, title and interest of the Property Trustee to the Notes shall vest
automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 5.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to
the Notes have been executed and delivered.

        (b) The Property Trustee
shall not transfer its right, title and interest in the Notes to the Regular
Trustees or to the Delaware Trustee (if the Property Trustee does not also
act as Delaware Trustee).

        (c) The Property Trustee
shall:

 


        (i) establish and maintain
a segregated non-interest bearing trust account (the "Property Trustee
Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon the receipt
of payments of funds made in respect of the Notes held by the Property
Trustee, deposit such funds into the Property Trustee Account and make
payments to the Holders of the Capital Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section
6.1. Funds in the Property Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The Property Trustee Account
shall be an account that is maintained with a banking institution the rating
of whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Capital

 

 
<Page>                                                            
16

 

Securities by a "nationally recognized statistical rating organization",
as that term is defined for purposes of Rule 436(g)(2) under the Securities
Act;


 

        (ii) engage in such ministerial
activities as shall be necessary or appropriate to effect the redemption
of the Capital Securities and the Common Securities to the extent the Notes
are prepaid or mature; and


 

        (iii) upon written notice
of distribution issued by the Regular Trustees in accordance with the terms
of the Securities, engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution of the Notes to Holders of Securities
upon the occurrence of a Special Event or other specified circumstances
pursuant to the terms of the Securities.


 

        (d) The Property Trustee
shall take all actions and perform such duties as may be specifically required
of the Property Trustee pursuant to the terms of the Securities.


 

        (e) The Property Trustee
shall take any Legal Action which arises out of or in connection with an
Event of Default of which a Responsible Officer of the Property Trustee
has actual knowledge or the Property Trustee's duties and obligations under
this Declaration or the Trust Indenture Act; provided however, that if
a Nonpayment has occurred and is continuing, a Holder of Capital Securities
may institute directly a proceeding for enforcement of payment to such
Holder of the principal of, premium, if any, or interest on the Notes having
a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") after the respective due
date specified in the Notes. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the
rights of such Holder of Capital Securities to the extent of any payment
made by the Note Issuer to such Holder of Capital Securities in such Direct
Action.


 

        (f) The Property Trustee
shall not resign as a Trustee unless either:



 

        (i) the Trust has been completely
liquidated and the proceeds of the liquidation distributed to the Holders
of Securities pursuant to the terms of the Securities; or




 

        (ii) a Successor Property
Trustee has been appointed and has accepted that appointment in accordance
with Section 5.7.

 



       (g) The Property Trustee shall
have the legal power to exercise all of the rights, powers and privileges
of a holder of Notes under the Indenture and, if an Event of Default actually
known to a Responsible Officer of the Property Trustee occurs and is continuing,
the Property Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Notes subject to the rights of the
Holders pursuant to the terms of such Securities.

 


        (h) The Property Trustee
may authorize one or more Paying Agents to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with

 

 
<Page>                                                           
17

 

respect to all Securities and any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed
by the Property Trustee at any time and a successor Paying Agent or additional
Paying Agents may be appointed at any time by the Property Trustee.


 

          (i) Subject
to this Section 3.8, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Regular Trustees set forth
in Section 3.6.

 

      The Property Trustee must exercise the
powers set forth in this Section 3.8 in a manner that is consistent with
the purposes and functions of the Trust set out in Section 3.3, and the
Property Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
SECTION 3.9  Certain Duties and Responsibilities of the Property
Trustee.


 

        (a) The Property 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 Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such
of the rights and powers vested in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
        (b) No provision of this
Declaration shall be construed to relieve the Property 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 an 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 Property Trustee shall be determined solely by the express provisions
of this Declaration and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Property Trustee; and




 

        (B) in the absence of bad
faith on the part of the Property Trustee, the Property 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 Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Property Trustee, the

 

 
<Page>                                                             
18

 

Property Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Declaration;



 

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


 

        (iii) the Property 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 Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;


 

        (iv) no provision of this
Declaration shall require the Property 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 it 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 Declaration or indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to it;


 

        (v) the Property Trustee's
sole duty with respect to the custody, safekeeping and physical preservation
of the Notes and the Property Trustee Account shall be to deal with such
property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations
on liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;


 

        (vi) the Property Trustee
shall have no duty or liability for or with respect to the value, genuineness,
existence or sufficiency of the Notes or the payment of any taxes or assessments
levied thereon or in connection therewith;


 

        (vii) the Property Trustee
shall not be liable for any interest on any money received by it except
as it may otherwise agree in writing with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds held by it except
in relation to the Property Trustee Account maintained by the Property
Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise
required by law; and


 

        (viii) the Property Trustee
shall not be responsible for monitoring the compliance by the Regular Trustees
or the Sponsor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.


 

 
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19

SECTION 3.10  Certain Rights of Property Trustee.

    (a) Subject to the provisions of Section 3.9:

 


        (i) the Property Trustee
may conclusively rely 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 Sponsor or the Regular Trustees contemplated by this Declaration
shall be sufficiently evidenced by an Officers' Certificate;


 

        (iii) whenever, in the administration
of this Declaration, the Property Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or omitting
any action hereunder, the Property 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 Sponsor or
the Regular Trustees;


 

        (iv) the Property Trustee
shall have no duty to see to any recording, filing or registration of any
instrument (including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or registration
thereof;


 

        (v) the Property Trustee
may consult with counsel or other experts of its selection and the advice
or opinion of such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise 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, and such counsel may be counsel to the Sponsor
or any of its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions concerning
the administration of this Declaration from any court of competent jurisdiction;


 

        (vi) the Property Trustee
shall be under no obligation to exercise any of the rights or powers vested
in it by this Declaration at the request or direction of any Holder, unless
such Holder shall have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Property
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 Property Trustee, provided,
that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve
the Property

 

 
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20

 

Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Declaration;


 

        (vii) the Property 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 Property
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;


 

        (viii) the Property Trustee
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, nominees
or attorneys;


 

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


 

        (x) whenever in the administration
of this Declaration the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Property Trustee (i) may request instructions
from the Holders of the Securities which instructions may only be given
by the Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such remedy, right or action, (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) except as otherwise
expressly provided by this Declaration, the Property Trustee shall not
be under any obligation to take any action that is discretionary under
the provisions of this Declaration; and


 

        (xii) the Property 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 Declaration.


        (b) No provision of this
Declaration shall be deemed to impose any duty or obligation on the Property
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 Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such act
or acts, or to exercise any such

 

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21

right, power, duty or obligation. No permissive power or authority available
to the Property Trustee shall be construed to be a duty.

SECTION 3.11  Delaware Trustee.

 
        Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular Trustees or
the Property Trustee described in this Declaration. Except as set forth
in Section 5.2, 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.

        SECTION 3.12  Execution
of Documents.


 
        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 that the Regular Trustees have the power and authority
to execute pursuant to Section 3.6; provided that, the registration
statement referred to in Section 3.6(b), including any amendments thereto,
shall be signed by a majority of the Regular Trustees holding office at
the time of such signing.
        SECTION 3.13  Not
Responsible for Recitals or Issuance of Securities.


 
        The recitals contained in this
Declaration and the Securities 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 or the Securities
        SECTION 3.14  Duration
of Trust.


 
        The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall have existence
for 55 years from January 1, 2001.
        SECTION 3.15  Mergers.

 


        (a) The Trust may not consolidate,
amalgamate or merge with or into, or be replaced by, or convey, transfer
or lease its properties and assets substantially as an entirety to any
corporation or other body, except as described in Section 3.15(b) and (c).


 

        (b) The Trust may, with
the consent of a majority of the Regular Trustees and without the consent
of the Holders of the Securities, the Delaware Trustee or the Property
Trustee, consolidate, amalgamate, merge with or into, or be replaced by
a trust organized as such under the laws of any State; providedthat:



 

        (i) if the Trust is not
the survivor, such successor entity (the "Successor Entity") either:




 

 

 

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22


 
        (A) expressly assumes all
of the obligations of the Trust under the Securities; or





 

        (B) substitutes for the
Securities other securities having substantially the same terms as the
Securities (the "Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;




 

        (ii) the Note Issuer expressly
acknowledges a trustee of the Successor Entity that possesses the same
powers and duties as the Property Trustee as the Holder of the Notes;




 

        (iii) the Capital Securities
or any Successor Securities which are Capital Securities are listed, or
any Successor Securities of the Capital Securities will be listed upon
notification of issuance, on any national or international securities exchange
or with another organization, if any, on which the Capital Securities are
then listed or quoted;




 

        (iv) such merger, consolidation,
amalgamation or replacement does not cause the Capital Securities (including
any Successor Securities of the Capital Securities) to be downgraded by
any nationally recognized statistical rating organization;




 

        (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to any dilution
of such Holders' interests in the new or successor entity as a result of
such merger, consolidation or replacement);




 

        (vi) such Successor Entity
has a purpose identical to that of the Trust;




 

        (vii) prior to such merger,
consolidation, amalgamation or replacement, the Sponsor has

received an opinion of a nationally recognized independent counsel
to the Trust experienced in such matters to the effect that:





 

        (A)  such merger, consolidation,
amalgamation or replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to any dilution
of the Holders' interest in the new entity);
        (B) following such merger,
consolidation, amalgamation or replacement, neither the Trust nor the Successor
Entity will be required to register as an Investment Company; and

        (C) following such merger,
consolidation, amalgamation or replacement, the Trust (or the Successor
Entity) will continue to be

 

 
<Page>                                                        
23


 

classified as a grantor trust for United States federal income tax
purposes; and





 

        (viii) the Sponsor guarantees
the obligations of such Successor Entity under the Successor Securities
at least to the extent provided by the Capital Securities Guarantee and
the Common Securities Guarantee.



        (c) Notwithstanding Section
3.15(b), the Trust shall not, except with the consent of Holders of 100%
in liquidation amount of the Securities, consolidate, amalgamate, merge
with or into, or be replaced by any other entity or permit any other entity
to consolidate, amalgamate, merge with or into, or replace it if such consolidation,
merger, amalgamation or replacement would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States
federal income tax purposes.

                                                                       
ARTICLE 4

                                                                       
SPONSOR

SECTION 4.1  Sponsor's Purchase of Common Securities.


 
        On the Closing Date (including
the Closing Date upon exercise of the Option) the Trust will issue, and
the Sponsor will purchase, the Common Securities issued by the Trust in
an amount at least equal to 3% of the capital of the Trust at the same
time as any Capital Securities are sold.
SECTION 4.2  Responsibilities of the Sponsor.


 
        In connection with the issuance
and sale of the Capital 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 Capital Securities, including any amendments thereto;
        (b) to determine the states
in which to take appropriate action to qualify or register for sale all
or part of the Capital Securities and to do any and all such acts, 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 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 applications to any national or international
stock exchange or the Nasdaq National Market for listing upon notice of
issuance of any Capital Securities if the Capital Securities are to be
listed;

        (d) to prepare for filing
by the Trust with the Commission (i) any required registration statements
on Form 8-A relating to the registration of the Capital Securities under
Section 12(b) of the Exchange Act, including any amendments thereto and
(ii) any other filings required under the Exchange Act; and

 

 

<Page>                                                      
24

 

        (e) to negotiate the terms
of the Underwriting Agreement providing for the sale of the Capital Securities
and the Capital Securities Guarantee.

 
        In addition, the Sponsor shall
have the right at any time to cause the Trust to be dissolved and the Notes
held by the Trust to be distributed to Holders of the Securities.

SECTION 4.3  Covenants of the Sponsor.

        For so long as the Capital
Securities remain outstanding, the Sponsor will covenant (i) to maintain
100% direct or indirect ownership of the Common Securities, (ii) to use
its reasonable best efforts to cause the Trust (a) to remain a statutory
business trust, except as permitted by this Declaration in connection with
the Trust's liquidation, merger, or consolidation, and (b) to not be classified
as an association taxable as a corporation or a publicly traded partnership
taxable as a corporation for United States federal income tax purposes
and (iii) to use its reasonable best efforts to cause each Holder of Securities
to be treated as owning an undivided beneficial ownership interest in the
assets of the Trust.

                                                               
ARTICLE 5

                                                               
TRUSTEES

SECTION 5.1  Number of Trustees.


 

The number of Trustees of this Trust shall be four, and:
        (a) at any time before the
issuance of any Securities, the Sponsor may, by written instrument, increase
or decrease the number of Trustees; and

        (b) after the issuance of
any Securities, the number of Trustees may be increased or decreased by
vote of the Holders of a majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities;
provided,
however,
that, the number of Trustees shall in no event be less than two; provided
further that (1) 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"); (2) there shall be at
least one Trustee who is an employee or officer of, or is affiliated with
the Sponsor (a "Regular Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Declaration is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.

 
SECTION 5.2  Qualifications of Delaware Trustee.


 

If required by the Business Trust Act, the Delaware Trustee shall be:
        (a) a natural person who
is a resident of the State of Delaware; or

        (b) if not a natural person,
an entity which has its principal place of business in the State of Delaware,
and otherwise meets the requirements of applicable law,


 

 

<Page>                                                         
25

        provided that,
if the Property Trustee has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable law, then
the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.

SECTION 5.3  Property Trustee; Eligibility.


 

        (a) There shall at all times
be one Trustee which shall act as Property Trustee which shall:
               
(i) not be an Affiliate of the Sponsor; 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 Commission to act as a Property 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 5.3(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.


        (b) If at any time the
Property Trustee shall cease to be eligible to so act under Section 5.3(a),
the Property Trustee shall immediately resign in the manner and with the
effect set forth in Section 5.7(c).

        (c) If the Property Trustee
has or shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Property Trustee and the Holder
of the Common Securities (as if it were the obligor referred to in Section
310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.

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

        (e) The initial Property
Trustee shall be The Bank of New York.

 
SECTION 5.4  Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.


 
        Each Regular Trustee and the
Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee)
shall either be a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.

 

 
<Page>                                                                 
26

 

SECTION 5.5  Regular Trustees.


 
        As of the date of this Declaration,
the Regular Trustees shall be Karen A. Gosnell and James T. Houghton.

 
            (a)
Except as expressly set forth in this Declaration and except if a meeting
of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, 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 or applicable law, any Regular Trustee
is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, provided, that, the registration
statement referred to in Section 3.6, including any amendments thereto,
shall be signed by a majority of the Regular Trustees; 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
3.6.
SECTION 5.6  Appointment of Delaware Trustee.


 
 The initial Delaware Trustee shall be The Bank of New York (Delaware).
SECTION 5.7  Appointment, Removal and Resignation of Trustees.


 

(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time:

 

        (i) until the issuance of
any Securities, by written instrument executed by the Sponsor; and


        (ii) after the issuance
of any Securities, by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders
of the Common Securities or by unanimous written consent of the Holders
of the Common Securities.


(b) (i) the Property Trustee shall not be removed in accordance
with Section 5.7(a) until a successor trustee possessing the qualifications
to act as Property Trustee under Section 5.3 (a "Successor Property Trustee")
has been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the Regular
Trustees and the Sponsor; and

(ii) the Delaware Trustee shall not be removed in accordance with Section
5.7(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee")

 

<Page>                                                               
27

has been appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the Regular
Trustees and the Sponsor.

 
        (c) A Trustee appointed to office
shall hold office until his successor shall have been appointed or until
his death, removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed
by the Trustee and delivered to the Sponsor and the Trust, which resignation
shall take effect upon such delivery or upon such later date as is specified
therein; provided, however, that:


 

(i) No such resignation of the Property Trustee shall be effective:
        (A) until a Successor Property
Trustee has been appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to the Trust,
the Sponsor and the resigning Property Trustee; or

        (B) until the assets of the
Trust have been completely liquidated and the proceeds thereof distributed
to the holders of the Securities; and

(ii) no such resignation of the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Delaware Trustee
and delivered to the Trust, the Sponsor and the resigning Delaware Trustee.

 
        (d) The Holders of the Common
Securities shall use their best efforts to promptly appoint a Successor
Delaware Trustee or Successor Property Trustee as the case may be if the
Property Trustee or the Delaware Trustee delivers an instrument of resignation
in accordance with this Section 5.7.


 
        (e) If no Successor Property
Trustee or Successor Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.7 within 60 days after delivery
of an instrument of resignation or removal, the Property Trustee or Delaware
Trustee resigning or being removed, as applicable, may petition any court
of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.

 
        (f) No Property Trustee or Delaware
Trustee shall be liable for the acts or omissions to act of any Successor
Property Trustee or successor Delaware Trustee, as the case may be.

 

 

 
<Page>                                                          
28

SECTION 5.8  Vacancies among Trustees.


 
        If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant
to Section 5.1, or if the number of Trustees is increased pursuant to Section
5.1, a vacancy shall occur. A resolution certifying the existence of such
vacancy by the Regular Trustees or, if there are more than two, a majority
of the Regular Trustees shall be conclusive evidence of the existence of
such vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with Section 5.7.
SECTION 5.9  Effect of Vacancies.


 
        The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy is filled by the appointment of a Regular Trustee in accordance
with Section 5.7, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.10  Meetings.


 
        If there is more than one Regular
Trustee, meetings of the Regular Trustees shall be held from time to time
upon the call of any Regular Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meetings of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with
a hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute
a waiver of notice of such meeting except where a Regular Trustee attends
a meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a majority of
the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present,
or without a meeting by the unanimous written consent of the Regular Trustees.
Any and all actions of the Regular Trustees also may be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11  Delegation of Power.


 

        (a) Any 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 purpose
of executing any documents contemplated in Section 3.6, including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and

 

 

 

 
<Page>                                                                    
29

 

        (b) The Regular Trustees
shall have power to delegate from time to time to such of their number
or to officers of the Trust the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary
to the provisions of the Trust, as set forth herein.

 
SECTION 5.12  Merger, Conversion, Consolidation, Amalgamation
or Succession to Business.
        Any Person into which the
Property Trustee or the Delaware Trustee, as the case may be, may be merged
or converted or with which either may be consolidated, or any Person resulting
from any merger, conversion, consolidation or amalgamation to which the
Property Trustee or the Delaware Trustee, as the case may be, shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of the Property Trustee or the Delaware Trustee, as the
case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.

                                                                       
ARTICLE 6

                                                                
DISTRIBUTIONS

SECTION 6.1  Distributions.

        Holders shall receive Distributions
at the times and in accordance with the applicable terms of the relevant
Holder's Securities. If and to the extent that the Note Issuer makes a
payment of interest (including Compounded Interest, as defined in the Indenture)
and Additional Interest (as defined in the Indenture), premium and/or principal
on the Notes held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed,
to the extent funds are available for that purpose and without further
action by the Regular Trustees, to make a Distribution of the Payment Amount
to Holders. The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise stated. Distributions
shall be made on the Capital Securities and the Common Securities in accordance
with the preferences set forth in their respective terms.

                                                                   
ARTICLE 7

                                                    
ISSUANCE OF SECURITIES

SECTION 7.1  General Provisions Regarding Securities.


 

        (a) The Regular Trustees
shall on behalf of the Trust issue the Capital Securities which shall have
such terms as are set forth in a completed Designation of Terms in the
form attached hereto as Annex I, in the amounts, at the times and with
such additions, deletions, modifications and completions as may be approved
by the Regular Trustees (the "Designation of Terms"), and one class of
Common Securities representing undivided beneficial interests in the assets
of the Trust in the amounts, at the times and having such terms as are
set forth in a completed Designation of Terms. The Trust shall

 
<Page>                                                                
30

issue no securities or other interests in the assets of the Trust other
than the Capital Securities and the Common Securities.

        (b) The Regular Trustees
shall negotiate the terms of any Underwriting Agreement relating to the
Capital Securities.

        (c) The Securities are subject
to redemption as provided in the Designation of Terms.

        (d) The Certificates shall
be signed on behalf of the Trust by a Regular Trustee. Such signature shall
be the manual signature of any present or any future Regular Trustee. In
case any Regular Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such Regular Trustee before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless
may be delivered as though the person who signed such Certificates had
not ceased to be such Regular Trustee; and any Certificate may be signed
on behalf of the Trust by such persons who, at the actual date of execution
of such Security, shall be the Regular Trustees of the Trust, although
at the date of the execution and delivery of the Declaration any such person
was not such a Regular Trustee. Certificates shall be typed, printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Regular Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation
of any stock exchange on which Securities may be listed, or to conform
to usage.

        (e) The consideration received
by the Trust for the issuance of the Securities shall constitute a contribution
to the capital of the Trust and shall not constitute a loan to the Trust.

        (f) Upon issuance of the
Securities as provided in this Declaration, the Securities so issued shall
be deemed to be validly issued, fully paid and non-assessable.

        (g) Every Person, by virtue
of having become a Holder or a Capital Security Beneficial Owner 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, including
the Designation of Terms.

        (h) The Securities are not,
and shall not be deemed to be, savings accounts or bank deposits or an
obligation of or guaranteed by any banking affiliate of the Note Issuer
and are not insured by the Federal Deposit Insurance Corporation or any
other governmental agency.

 
SECTION 7.2  Paying Agent.

        In the event that the Capital
Securities are not in Book-Entry only form, the Trust shall maintain in
New York, New York, an office or agency where the Capital Securities may
be presented for payment ("Paying Agent). The Trust may

 

<Page>                                                                   
31

appoint the Paying Agent and may appoint one or more additional paying
agents in such other locations as it shall determine and shall make such
appointment in any other location required by law or the rules of any securities
exchange on which the Capital Securities may be listed. The term "Paying
Agent" includes any additional paying agent. The Trust may change any Paying
Agent without prior notice to any Holder. The Trust shall notify the Property
Trustee of the name and address of any Paying Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as
Paying Agent, the Property Trustee shall act as such. The Trust or any
of its Affiliates may act as Paying Agent. The Property Trustee shall initially
act as Paying Agent for the Capital Securities and the Trust shall initially
act as Paying Agent for the Common Securities.

                                                                 
ARTICLE 8

                                              
TERMINATION OF TRUST

SECTION 8.1  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;
upon the consent of a Majority in liquidation amount of the Securities
voting together as a single class to dissolve the Trust; or upon the revocation
of the Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;

        (iii) upon the entry of a
decree of judicial dissolution of the Holder of the Common Securities,
the Sponsor or the Trust;

        (iv) when all of the Securities
shall have been called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with the terms
of the Securities;

        (v) at the election of the
Sponsor at any time pursuant to which the Trust shall have been dissolved
in accordance with the terms of the Securities and all of the Notes shall
have been distributed to the Holders of Securities in exchange for all
of the Securities; or

        (vi) before the issuance
of any Securities, with the consent of all of the Regular Trustees and
the Sponsor.

    (b) As soon as is practicable after the occurrence
of an event referred to in Section 8.1(a), the Trustees shall, after satisfaction
of all obligations of the Trust, file a certificate of cancellation with
the Secretary of State of the State of Delaware and the Trust shall terminate.

    (c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust.

 

 

 

<Page>                                                      
32

                                                           
ARTICLE 9

                                        
TRANSFER OF INTERESTS

SECTION 9.1  Transfer of Securities.


 

        (a) Securities may only
be transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the Securities. Any transfer
or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
        (b) Subject to this Article
IX and Section 4.3, the Sponsor and any Related Party may only transfer
Common Securities to the Sponsor or a Related Party of the Sponsor; providedthat,
any such transfer is subject to the condition precedent that the transferor
obtain the written opinion of a nationally recognized independent counsel
experienced in such matters that such transfer would not cause more than
an insubstantial risk that:

 


        (i) the Trust would not
be classified for United States federal income tax purposes as an association
or a publicly traded partnership taxable as a corporation; and


 

        (ii) the Trust would be
an Investment Company or the transferee would become an Investment Company.



SECTION 9.2  Transfer of Certificates.


 
        The Regular Trustees shall provide
for the registration of Certificates and of transfers of Certificates,
which will be effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of any tax or
other government charges that may be imposed in relation to it. Upon surrender
for registration of transfer of any Certificate, the Regular Trustees shall
cause one or more new Certificates to be issued in the name of the designated
transferee or transferees. Every Certificate surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in
form satisfactory to the Regular Trustees duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer shall be canceled by the Regular Trustees.
A transferee of a Certificate shall be entitled to the rights and subject
to the obligations of a Holder hereunder upon the receipt by such transferee
of a Certificate. By acceptance of a Certificate, each transferee shall
be deemed to have agreed to be bound by this Declaration.
SECTION 9.3  Deemed Security Holders.


 
        The Trustees may treat the Person
in whose name any Certificate shall be registered on the books and records
of the Trust as the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving Distributions
and for all other purposes whatsoever and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such Certificate
or in the Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other notice thereof.

 

 

 
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33

SECTION 9.4  Book-Entry Interests.


 
        Unless otherwise specified in
the terms of the Capital Securities, the Capital Securities Certificates,
on original issuance, will be issued in the form of one or more fully registered,
global Capital Security Certificates, to be delivered to the Depositary,
the initial Clearing Agency (each a "Global Security"), by, or on behalf
of, the Trust. Such Global Securities shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee
of the Depositary, and no Capital Security Beneficial Owner will receive
a definitive Capital Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Securities, except as provided
in Section 9.7. Unless and until definitive, fully registered Capital Security
Certificates (the "Definitive Capital Security Certificates") have been
issued to the Capital Security Beneficial Owners pursuant to Section 9.7:

 

        (a) the provisions of this
Section 9.4 shall be in full force and effect;
        (b) the Trust and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of
this Declaration (including the payment of Distributions on the Global
Securities and receiving approvals, votes or consents hereunder) as the
sole Holder of the Capital Securities and shall have no obligation to the
Capital Security Beneficial Owners;

        (c) to the extent that the
provisions of this Section 9.4 conflict with any other provisions of this
Declaration, the provisions of this Section 9.4 shall control; and

        (d) the rights of the Capital
Security Beneficial Owners shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Capital Security Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. The Depositary will make Book-Entry
transfers among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Securities to such Clearing Agency
Participants.

 
SECTION 9.5  Notices to Clearing Agency.


 
        Whenever a notice or other communication
to the Capital Security Holders is required under this Declaration, unless
and until Definitive Capital Security Certificates shall have been issued
to the Capital Security Beneficial Owners pursuant to Section 9.7, the
Regular Trustees shall give all such notices and communications specified
herein to be given to the Capital Security Holders to the Clearing Agency,
and shall have no notice obligations to the Capital Security Beneficial
Owners.
SECTION 9.6  Appointment of Successor Clearing Agency.


 
        If any Clearing Agency elects
to discontinue its services as securities depositary with respect to the
Capital Securities, the Regular Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Capital Securities.

 

 

 
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34

SECTION 9.7 Definitive Capital Security Certificates.


 

If:
        (a) a Clearing Agency elects
to discontinue its services as securities depositary with respect to the
Capital Securities and a successor Clearing Agency is not appointed within
90 days after such discontinuance pursuant to Section 9.6; or

        (b) the Regular Trustees
elect after consultation with the Sponsor to terminate the Book-Entry system
through the Clearing Agency with respect to the Capital Securities;

then:

        (c) Definitive Capital Security
Certificates shall be prepared by the Regular Trustees on behalf of the
Trust with respect to such Capital Securities; and

        (d) upon surrender of the
Global Securities by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause Definitive Capital Security Certificates
to be delivered to Capital Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the Trustees nor the Trust
shall be liable for any delay in delivery of such instructions and each
of them may conclusively rely on and shall be protected in relying on,
said instructions of the Clearing Agency. The Definitive Capital Security
Certificates shall be typed, printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Capital Securities may be listed, or to conform to usage.

Otherwise, Definitive Capital Security Certificates will not be issued.

 
SECTION 9.8  Mutilated, Destroyed, Lost or Stolen Certificates.

If:

 


        (a) any mutilated Certificates
should be surrendered to the Regular Trustees, or if the Regular Trustees
shall receive evidence to their satisfaction of the destruction, loss or
theft of any Certificate; and


 

        (b) there shall be delivered
to the Regular Trustees such security or indemnity as may be required by
them to keep each of them harmless,


then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of
the Trust shall execute and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like

 

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35

denomination. In connection with the issuance of any new Certificate
under this Section 9.8, the Regular Trustees may require the payment of
a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership interest
in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.

                                                                      
ARTICLE 10

                                                   
LIMITATION OF LIABILITY OF

                                 
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS

SECTION 10.1  Liability.


 
        (a) Except as expressly set
forth in this Declaration, the Securities Guarantees and the terms of the
Securities, the Sponsor shall not:

 

        (i) be personally liable
for the return of any portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be made solely from
assets of the Trust; and
        (ii) be required to pay to
the Trust or to any Holder of Securities any deficit upon dissolution of
the Trust or otherwise.

 
        (b) Pursuant to Section 3803(a)
of the Business Trust Act, the Holders of the Capital Securities shall
be entitled to the same limitation of personal liability extended to stockholders
of private corporations organized for profit under the General Corporation
Law of the State of Delaware.

SECTION 10.2  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 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 negligence in the case
of the Property Trustee) 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 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.

 

 

 
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36

SECTION 10.3  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 (other than the duties imposed
on the Property Trustee under the Trust Indenture Act), 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 any 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.


 

(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.



 
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37

SECTION 10.4   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 and expenses),
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 and expenses) 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 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 10.4(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 10.4(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 Holders of
the Common Securities.

        (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
10.4(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

 

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38

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 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Note Issuer if a determination is reasonably
and promptly made (i) by the Regular Trustees by a majority vote of a quorum
of disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
Common Security Holder of the Trust, that, based upon the facts known to
the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not opposed
to the best interests of the Trust, or, with respect to any criminal proceeding,
that such Company Indemnified Person believed or 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 to the Holders of the Common or Capital Securities.

        (vi) The indemnification
and advancement of expenses provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(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 Capital 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 10.4(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 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(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

 

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39

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 10.4(a).

        (viii) For purposes of this
Section 10.4(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 10.4(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
10.4(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 the (i) Property Trustee, (ii) the Delaware Trustee, (iii)
any Affiliate of the Property Trustee or the Delaware Trustee, and (iv)
any officers, directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Property Trustee or the Delaware
Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or
expense including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) 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 10.4(b) shall survive the satisfaction and discharge
of this Declaration.

 
SECTION 10.5  Outside Businesses.

        Any Covered Person, the Sponsor,
the Delaware Trustee and the Property 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, the Delaware Trustee, or the
Property 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

 

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40

Covered Person, the Sponsor, the Delaware Trustee and the Property 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, the Delaware Trustee and the
Property 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 act on any committee or body
of holders of, securities or other obligations of the Sponsor or its Affiliates.

                                                                
ARTICLE II

                                                             
ACCOUNTING

SECTION 11.1  Fiscal Year.


 
        The fiscal year ("Fiscal Year")
of the Trust shall be the calendar year or such other year as is required
by the Code.
SECTION 11.2  Certain Accounting Matters.


 

        (a) At all times during
the existence of the Trust, the Regular Trustees shall keep, or cause to
be kept, full books of account, records and supporting documents, which
shall reflect in reasonable detail each transaction of the Trust.
        (b) The Regular Trustees
shall cause to be duly prepared and delivered to each of the Holders of
Securities any annual United States federal income tax information statement,
required by the Code, containing such information with regard to the Securities
held by each Holder as is required by the Code and the Treasury Regulations.
The Regular Trustees shall endeavor to deliver all such statements within
such period after the end of each Fiscal Year of the Trust as required
by the Treasury Regulations; and

        (c) The Regular Trustees
shall cause to be duly prepared and filed with the appropriate taxing authority,
an annual United States federal income tax return, on a Form 1041 or such
other form required by United States federal income tax law, and any other
annual income tax returns required to be filed by the Regular Trustees
on behalf of the Trust with any state or local taxing authority.

 
SECTION 11.3  Banking.


 
        The Trust shall maintain one
or more bank accounts in the name and for the sole benefit of the Trust;
provided,
however,
that all payments of funds in respect of the Notes held by the Property
Trustee shall be made directly to the Property Trustee Account and no other
funds of the Trust shall be deposited in the Property Trustee Account.
The sole signatories for such accounts shall be designated by the Regular
Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Trustee Account.

 

 

 
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41

SECTION 11.4  Withholding.

        The Trust and the Regular
Trustees shall comply with all withholding requirements under United States
federal, state and local law. The Trust shall request, and the Holders
shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each Holder,
and any representations and forms as shall reasonably be requested by the
Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms
with applicable jurisdictions and, unless an exemption from withholding
is properly established by a Holder, shall remit amounts withheld with
respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Holder. In the event of any claim over withholding, the Holders
shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding.

                                                                  
ARTICLE 12

                                          
AMENDMENTS AND MEETINGS

SECTION 12.1  Amendments.


 

        (a) Except as otherwise
provided in this Declaration or by any applicable terms of the Securities,
this Declaration may only be amended by a written instrument approved and
executed by:

 

           
(i) the Regular Trustees (or, if there are more than two Regular Trustees
a majority of the Regular Trustees);


 

           
(ii) if the amendment affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee; and


 

           
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.


    (b) No amendment shall be made, and any such
purported amendment shall be void and ineffective:

 


           
(i) unless, in the case of any proposed amendment, the Property Trustee
shall have first received an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities);


 

        (ii) unless, in the case
of any proposed amendment which affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee shall have
first received:


 

 

 

 

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42


 

        (A) an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the terms
of the Securities); and
        (B) an opinion of counsel
(who may be counsel to the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this Declaration (including
the terms of the Securities); and



(iii) to the extent the result of such amendment would be to:

 


        (A) cause the Trust to fail
to continue to be classified for purposes of United States federal income
taxation as a grantor trust;
        (B) reduce or otherwise adversely
affect the powers of the Property Trustee in contravention of the Trust
Indenture Act; or

        (C) cause the Trust to be
deemed to be an Investment Company required to be registered under the
Investment Company Act.




        (c) At such time after
the Trust has issued any Securities that remain outstanding, any amendment
that would adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional requirements
as may be set forth in the terms of such Securities.


 
        (d) Section 10.1(b) and this
Section 12.1 shall not be amended without the consent of all of the Holders
of the Securities.

 
        (e) Article IV shall not be
amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities.

 
        (f) The rights of the holders
of the Common Securities under Article V to increase or decrease the number
of, and appoint and remove Trustees, shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the Common Securities.

 
        (g) Notwithstanding Section
12.1(c), this Declaration may be amended without the consent of the Holders
of the Securities to:

 

    (i) cure any ambiguity;
    (ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other provision
of this Declaration;

    (iii) add to the covenants, restrictions or obligations
of the Sponsor;

    (iv) conform to any change in Rule 3a-5 or any written
change in interpretation or application of Rule 3a-5 by any legislative
body, court,

 

<Page>                                                              
43

government agency or regulatory authority which amendment does not have
a material adverse effect on the right, preferences or privileges of the
Holders; and

    (v) modify, eliminate and add to any provision of
the Declaration to such extent as may be necessary to carry out its provisions,
including making any redemption of the Notes or dissolution of the Trust
and distribution of the Notes to the Holders of the Securities in exchange
for all of the Securities.

 
SECTION 12.2  Meetings of the Holders of Securities; Action
by Written Consent.

        (a) Meetings of the Holders
of any class of Securities may be called at any time by the Regular Trustees
(or as provided in the terms of the Securities) to consider and act on
any matter on which Holders of such class of Securities are entitled to
act under the terms of this Declaration, the terms of the Securities or
the rules of any stock exchange on which the Capital Securities are listed
or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of at least 10%
in liquidation amount of such class of Securities. Such direction shall
be given by delivering to the Regular Trustees one or more calls in a writing
stating that the signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to
be called. Any Holders of Securities calling a meeting shall specify in
writing the Security Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities specified shall be
counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.

        (b) Except to the extent
otherwise provided in the terms of the Securities, the following provisions
shall apply to meetings of Holders of Securities:

 


        (i) notice of any such meeting
shall be given to all the Holders of Securities having a right to vote
thereat at least seven days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of the Holders of Securities
is permitted or required under this Declaration or the rules of any stock
exchange on which the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of the Holders
of Securities. Any action that may be taken at a meeting of the Holders
of Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning
not less than the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a meeting at which
all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written ballot submitted
to the Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the Regular
Trustees;


 

 
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44

        (ii) each Holder of a Security
may authorize any Person to act for it by proxy on all matters in which
a Holder of Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy shall
be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity
of proxies shall be governed by the General Corporation Law of the State
of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;



 

        (iii) each meeting of the
Holders of the Securities shall be conducted by the Regular Trustees or
by such other Person that the Regular Trustees may designate; and


 

        (iv) unless the Business
Trust Act, this Declaration, the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on which the Capital Securities
are then listed or trading otherwise provide, the Regular Trustees, in
their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the exercise
of any such right to vote.
                                                                   
ARTICLE 13
                                         
REPRESENTATIONS OF PROPERTY TRUSTEE

                                                           
AND DELAWARE TRUSTEE

SECTION 13.1  Representations and Warranties of Property
Trustee.


 
        The Trustee that acts as initial
Property Trustee represents and warrants to the Trust and to the Sponsor
at the date of this Declaration, and each Successor Property Trustee represents
and warrants to the Trust and the Sponsor at the time of the Successor
Property Trustee's acceptance of its appointment as Property Trustee, that:

 

        (a) the Property Trustee
is a state or federal banking corporation with trust powers and the authority
to execute and deliver, and to carry out and perform its obligations under
the terms of, this Declaration;
        (b) the execution, delivery
and performance by the Property Trustee of the Declaration has been duly
authorized by all necessary corporate action on the part of the Property
Trustee. The Declaration has been duly executed and delivered by the Property
Trustee, and it constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights

 

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generally and to general principles of equity and the discretion of
the court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);

        (c) the execution, delivery
and performance of this Declaration by the Property Trustee does not conflict
with or constitute a breach of the charter or by-laws of the Property Trustee;
and

        (d) no consent, approval
or authorization of, or registration with or notice to, any New York State
or federal banking authority is required for the execution, delivery or
performance by the Property Trustee of this Declaration.

 
SECTION 13.2  Representations and Warranties of Delaware Trustee.

        The Trustee that acts as
initial Delaware Trustee represents and warrants to the Trust and to the
Sponsor at the date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware
Trustee, that:

 


        (a) the Delaware Trustee
is duly organized, validly existing and in good standing under the laws
of the State of Delaware, with trust powers and the authority to execute
and deliver, and to carry out and perform its obligations under the terms
of, this Declaration;


 

        (b) the Delaware Trustee
has been authorized to perform its obligations under the Certificate of
Trust and the Declaration. The Declaration under Delaware law constitutes
a legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);


 

        (c) no consent, approval
or authorization of, or registration with or notice to, any federal banking
authority is required for the execution, delivery or performance by the
Delaware Trustee of this Declaration; and


               
(d) the Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.

                                                                       
ARTICLE 14

                                                                
MISCELLANEOUS

SECTION 14.1  Notices.


 
        All notices provided for in
this Declaration 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:

 

 

 

 
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46

 
        (a) if given to the Trust, in
care of the Regular Trustees at the Trust's mailing address set forth below
(or such other address as the Trust may give notice of to the Holders of
the Securities):

 

BAC Capital Trust I

c/o Bank of America Corporation

Attention: Corporate Treasury

Bank of America Corporate Center

100 North Tryon Street

NC1-007-23-01

Charlotte, North Carolina 28255

Telecopy: (704) 386-0270

 
        (b) if given to the Delaware
Trustee, at the mailing address set forth below (or such other address
as the Delaware Trustee may give notice of to the Holders of the Securities):

 

The Bank of New York (Delaware)

White Clay Center, Route 273

Newark, Delaware 19711

Attention: Corporate Trust Trustee Administration

 
        (c) if given to the Property
Trustee, at the Property Trustee's mailing address set forth below (or
such other address as the Property Trustee may give notice of to the Holders
of the Securities):

 

The Bank of New York

101 Barclay Street, 21 West

New York, New York 10286

Attention: Corporate Trust Trustee

Administration

 
        (d) if given to the Holder of
the Common Securities, at the mailing address of the Sponsor set forth
below (or such other address as the Holder of the Common Securities may
give notice to the Trust):

 

Bank of America Corporation

Bank of America Corporate Center

100 North Tryon Street

NC1-007-23-01

Charlotte, North Carolina 28255

Attention: Corporate Treasury

 
        (e) if given to any other Holder,
at the address set forth on the books and records of the Trust.

 
        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

 
<Page>                                                                 
47

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 14.2  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 14.3  Intention of the Parties.


 
        It is the intention of the parties
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4  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 14.5  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 so expressed.
SECTION 14.6  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 14.7  Counterparts; Acceptance.

        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.

        Each Trustee, by its execution
of a counterpart of this Declaration, acknowledges and accepts its appointment
as Trustee.


 

 

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48

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

                                                                                
/s/ KAREN A. GOSNELL

                                                                               
Karen A. Gosnell, as Regular Trustee

                                                                                
/S/ JAMES T. HOUGHTON

                                                                               
James T. Houghton, as Regular Trustee

 

 

                                                                               
THE BANK OF NEW YORK (DELAWARE), as

                                                                               
Delaware Trustee

 

By: /S/ JOHN NICHOLS

Name: John Nichols

Title: President

 

 
THE BANK OF NEW YORK,

as Property Trustee

By: /s/ DEREK KETTEL

Name: Derek Kettel

Title: Agent

 

 

BANK OF AMERICA CORPORATION, as Sponsor

By: /S/ KAREN A. GOSNELL

Name: Karen A. Gosnell

Title: Senior Vice President

 

 

 






 






<Page>                                                                 
49

 

 

 

 


ANNEX I
BAC CAPITAL TRUST I

DESIGNATION OF TERMS OF

7% CAPITAL SECURITIES AND

7% COMMON SECURITIES


            Pursuant
to Section 7.1 of the Amended and Restated Declaration of Trust, dated
as of December 6, 2001 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities and the Common Securities
are set out below (each capitalized term used but not defined herein has
the meaning set forth in the Declaration);

        1. Designation and Number.

        (a) Capital Securities.
The Capital Securities of the Trust (liquidation amount $25 per Capital
Security) are hereby designated for purposes of identification only as
"BAC Capital Trust I 7% Capital Securities" (the "Capital Securities").
Initially, the Trust shall issue 20,000,000 Capital Securities with an
aggregate liquidation amount with respect to the assets of the Trust of
$500,000,000. The Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Capital Securities are listed.

        (b) Common Securities.
The Common Securities of the Trust (liquidation amount $25 per Security)
are hereby designated for purposes of identification only as "BAC Capital
Trust I 7% Common Securities" (the "Common Securities"). Initially, the
Trust shall issue 620,000 Common Securities with an aggregate liquidation
amount with respect to the assets of the Trust of $15,500,000. The Common
Security Certificates evidencing the Common Securities shall be substantially
in the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom
or practice.

        (c) Upon exercise of the
Option by the Underwriters, the Trust may issue up to an additional 3,000,000
Capital Securities and up to an additional 93,000 Common Securities. References
in this Designation of Terms or in the Declaration to Securities, Capital
Securities or Common Securities shall include the Securities so issued.
At the time of the issue of additional Securities, the Trust and the Sponsor
shall execute a certificate in the form of Annex I-A, attached hereto.

        2. Distributions.

        (a) Distributions payable
on each Security will be fixed at a rate per annum of 7% (the "Coupon Rate")
of the stated liquidation amount of $25 per Security, such rate being the
rate of interest payable on the Notes to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted
by applicable law). A Distribution is payable only to the extent that

 

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I-1

payments are made in respect of the Notes held by the Property Trustee
and to the extent the Property Trustee has funds available therefor. The
amount of Distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. The amount of Distributions
payable for any period shorter than a full distribution period will be
computed on the basis of the actual number of days elapsed in a 360-day
year of twelve 30-day months.

        (b) Distributions on the
Securities will be cumulative, will accrue from December 14, 2001 and will
be payable quarterly in arrears, on March 15, June 15, September 15 and
December 15 of each year, commencing on March 15, 2002, except as otherwise
described below. The Note Issuer has the right under the Indenture to defer
payments of interest on the Notes by extending the interest payment period
from time to time on the Notes for a period not exceeding 20 consecutive
quarterly periods (each an "Extension Period"), during which Extension
Period no interest shall be due and payable on the Notes, providedthat
no Extension Period may extend beyond the Stated Maturity. As a consequence
of such deferral, Distributions also will be deferred on the Capital Securities
for the same period. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Note
Issuer may extend further such Extension Period; providedthat such
Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly periods or extend beyond
the Stated Maturity. Payments of accrued Distributions will be payable
to Holders as they appear on the books and records of the Trust or the
Clearing Agency, as the case may be, on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Note Issuer may commence a
new Extension Period, subject to the above requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof,
but the Note Issuer may repay at any time all or any portion of the interest
accrued during an Extension Period.

        (c) Distributions on the
Securities will be payable to the Holders thereof as they appear on the
books and records of the Trust on the relevant record dates. While the
Capital Securities remain in Book-Entry only form, the relevant record
dates shall be one Business Day prior to the relevant payment dates which
payment dates correspond to the interest payment dates on the Notes. Payment
of Distributions on the Securities held in Book-Entry only form will be
made to the Depositary in immediately available funds. The Depositary's
practice is to credit Clearing Agency Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on the
Depositary's records unless the Depositary has reason to believe that it
will not receive payments on such payment date. Payments by (i) Clearing
Agency Participants and (ii) securities brokers and dealers, banks and
trust companies and other entities that clear transactions through or maintain
a direct or indirect custodial relationship with a Clearing Agency Participant
(an "Indirect Participant") to Capital Security Beneficial Owners will
be governed by standing instructions and customary practices and will be
the responsibility of such Clearing Agency Participants and Indirect Participants
and not of the Depositary, the Trust or the Corporation, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of distributions to the Depositary is the responsibility of the
Trust, disbursement of such payments to Clearing Agency Participants is
the responsibility of the Depositary, and disbursement of such payments
to the Capital Security Beneficial Owners is the responsibility of the
Clearing Agency Participants and Indirect Participants. The relevant record

 

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I-2

dates for the Common Securities shall be the same record date as for
the Capital Securities. If the Capital Securities shall not continue to
remain in Book-Entry only form, the regular record dates for the Capital
Securities shall be the March 1, June 1, September 1 and December 1 prior
to the relevant payment dates, which payment dates correspond to the interest
payment dates on the Notes. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a result of
the Note Issuer having failed to make a payment under the Notes, will cease
to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead
be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance
with the Indenture. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable
on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.

        (d) In the event that there
is any money or other property held by or for the Trust that is not accounted
for hereunder, such property shall be distributed Pro Rata (as defined
herein) among the Holders of the Securities.

        3. Liquidation Distribution
Upon Dissolution.

        In the event of any voluntary
or involuntary dissolution, winding-up or termination of the Trust, the
Holders of the Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive out of the
assets of the Trust available for distribution to Holders of Securities
after satisfaction of liabilities of creditors an amount equal to the aggregate
of the stated liquidation amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, winding-up
or termination, Notes in an aggregate stated principal amount equal to
the aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid Distributions on, such Securities,
shall be distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities.

        If, upon any such dissolution,
the Liquidation Distribution can be paid only in part because the Trust
has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Securities
shall be paid on a Pro Rata basis. Holders of the Common Securities will
be entitled to receive distributions upon any such dissolution Pro Rata
with Holders of the Capital Securities, except that if an Event of Default
has occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with respect to such distributions.

        4. Redemption and Distribution.

        (a) The Securities are subject
to redemption at the Stated Maturity, at any time after December 15, 2006
and in certain circumstances, following the occurrence of a Special Event
as follows:

 

 

 

<Page>                                                                 
I-3
 

        (i) Upon payment of the
Notes at a payment price equal to the principal amount of, plus any accrued
and unpaid interest thereon at the Stated Maturity, the proceeds from such
payment shall be applied simultaneously to redeem the Securities at the
Maturity Redemption Price.
        (ii) In the event of a Special
Event Prepayment prior to December 15, 2006, the proceeds from such Special
Event Prepayment shall be applied simultaneously to redeem the Capital
Securities at the Special Event Redemption Price.

        (iii) The Securities also
may be redeemed in whole or in part on or after December 15, 2006, contemporaneously
with an optional prepayment of the Notes at a redemption price equal to
the Optional Redemption Price. If fewer than all the outstanding Securities
are to be so redeemed, the Common Securities and the Capital Securities
will be redeemed Pro Rata and the Capital Securities to be redeemed will
be as described in Section 4(d)(ii) below.

        (b) If the Sponsor has given
a notice of its election to terminate the Trust, the Regular Trustees shall
dissolve the Trust and, after satisfaction of creditors, cause Notes held
by the Property Trustee, having an aggregate principal amount equal to
the aggregate stated liquidation amount of the Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid Distributions on, and having
the same record date for payment as, the Securities, to be distributed
to the Holders of the Securities in liquidation of such Holders' interests
in the Securities within 90 days following receipt of the Sponsor's notice
of election.

        (c) On and from the date
fixed by the Regular Trustees for any distribution of Notes and dissolution
of the Trust: (i) the Securities will no longer be deemed to be outstanding,
(ii) the Depositary or its nominee as the record Holder of the Capital
Securities, will receive a registered Global Security or Securities representing
the Notes to be delivered upon such distribution and any certificates representing
Securities, except for certificates representing Capital Securities held
by the Depositary or its nominee (or any successor Clearing Agency or its
nominee), will be deemed to represent beneficial interests in the Notes
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an identical interest rate, and accrued and unpaid interest
equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Note Issuer or its agent for transfer
or reissue. The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities
for all quarterly Distribution periods terminating on or before the date
of redemption. If the Notes are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Note Issuer will use its best
efforts to have the Notes listed on the securities exchange, if any, on
which the Capital Securities were listed immediately prior to the distribution
of the Notes.

        (d) Redemption or Distribution
Procedures shall be as follows:

        (i) A Redemption/Distribution
Notice will be given by the Trust by mail to each Holder of Securities
to be redeemed or exchanged not fewer than 15 nor more than 60 days before
the redemption date or exchange date which, in the case of a redemption,

 

 
<Page>                                                                
I-4
 

will be the date fixed for redemption of the Notes. For purposes of
the calculation of the redemption date or exchange date and the dates on
which notices are given pursuant to this Section 4(d)(i), a Redemption/
Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to Holders of Securities.
Each Redemption/Distribution Notice shall be addressed to the Holders of
Securities at the address of each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or
in the mailing of either with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
        (ii) In the event that fewer
than all the outstanding Securities are to be redeemed, the Securities
to be redeemed shall be redeemed Pro Rata from each Holder of Capital Securities,
it being understood that, in respect of Capital Securities registered in
the name of and held of record by the Depositary or its nominee (or any
successor Clearing Agency or its nominee) or any nominee, the distribution
of the proceeds of such redemption will be made to each Clearing Agency
Participant (or Person on whose behalf such nominee holds such securities)
in accordance with the procedures applied by such agency or nominee.

        (iii) If Securities are to
be redeemed and the Trust gives a Redemption/Distribution Notice, which
notice may only be issued if the Notes are repaid as set out in this Section
4 (which notice will be irrevocable), then (A) while the Capital Securities
are in Book-Entry only form, with respect to the Capital Securities, by
12:00 noon, New York City time, on the redemption date, provided that the
Note Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related prepayment or maturity of the Notes, the Property
Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Capital Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities, and (B) with respect to
Capital Securities issued in definitive form and Common Securities, provided
that the Note Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related prepayment or maturity of the Notes,
the Property Trustee will pay the relevant Redemption Price to the Holders
of such Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption date.
If a Redemption/Distribution Notice shall have been given and funds deposited
as required, if applicable, then immediately prior to the close of business
on the date of such deposit, or on the redemption date, as applicable,
Distributions will cease to accrue on the Securities so called for redemption
and all rights of Holders of such Securities so called for redemption will
cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither
the Regular Trustees nor the Trust shall be required to register or cause
to be registered the transfer of any Securities that have been so called
for redemption. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment will
be made on the immediately

 

<Page>                                                     
I-5

preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption
Price in respect of any Securities is improperly withheld or refused and
not paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption date to the actual
date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption
Price.

        (iv) Redemption/Distribution
Notices shall be sent by the Regular Trustees on behalf of the Trust to
(A) in respect of the Capital Securities, the Depositary or its
nominee (or any successor Clearing Agency or its nominee) if the Global
Securities have been issued or, if Definitive Capital Security Certificates
have been issued, to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.

        (v) Subject to the foregoing
and applicable law (including, without limitation, United States federal
securities laws), provided the acquiror is not the Holder of the Common
Securities or the obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by private agreement.

        5. Voting Rights - Capital
Securities.

        (a) Except as provided under
Sections 5(b) and 7 of this Designation of Terms and as otherwise required
by law and the Declaration, the Holders of the Capital Securities will
have no voting rights.

        (b) Subject to the requirements
set forth in this paragraph, the Holders of a Majority in aggregate liquidation
amount of the Capital Securities, voting separately as a class may direct
the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under the Declaration, including the right to
direct the Property Trustee, as holder of the Notes, to (i) exercise the
remedies available under the Indenture conducting any proceeding for any
remedy available to the Note Trustee, or exercising any trust or power
conferred on the Note Trustee with respect to the Notes, (ii) waive any
past Event of Default and its consequences that is waivable under Section
5.01 of the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Notes shall be due and payable, or (iv) consent
to any amendment, modification or termination of the Indenture as a holder
of the Notes provided, however, that, where a consent or
action under the Indenture would require the consent or act of the Holders
of a Super Majority affected thereby the Property Trustee may only give
such consent or take such action at the written direction of the Holders
of at least the proportion in liquidation amount of the Capital Securities
which the relevant Super Majority represents of the aggregate principal
amount of the Notes outstanding. The Property Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders of
the Capital Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the Property Trustee
or the Note Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the
Capital Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax

 

<Page>                                                               
I-6

counsel to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a grantor trust
on account of such action. If a Nonpayment occurs on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), and such Nonpayment is continuing, a Holder of Capital
Securities may institute a Direct Action after the respective due date
specified in the Notes. In connection with such Direct Action, the rights
of the Holders of the Common Securities will be subrogated to the rights
of such Holder of Capital Securities to the extent of any payment made
by the Note Issuer to such Holder of Capital Securities in such Direct
Action. If the Property Trustee fails to enforce its rights under the Declaration,
any Holder of Capital Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against any Person to enforce
the Property Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Property Trustee or any other Person.

        Except as provided in this
Section, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Notes.

        Any approval or direction
of Holders of Capital Securities may be given at a separate meeting of
Holders of Capital Securities convened for such purpose, at a meeting of
all of the Holders of Securities or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of Capital
Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder
of record of Capital Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action
is to be taken, (ii) a description of any resolution proposed for adoption
at such meeting on which such Holders are entitled to vote or of such matter
upon which written consent is sought, and (iii) instructions for the delivery
of proxies or consents.

        No vote or consent of the
Holders of the Capital Securities will be required for the Trust to redeem
and cancel Capital Securities or to distribute the Notes in accordance
with the Declaration and the terms of the Securities.

        Notwithstanding that Holders
of Capital Securities are entitled to vote or consent under any of the
circumstances described above, any of the Capital Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be entitled to
vote or consent and shall, for purposes of such vote or consent, be treated
as if they were not outstanding.

        6. Voting Rights - Common
Securities.

        (a) Except as provided under
Sections 6(b) and (c), 7(a) and (b) and 8 of this Designation of Terms
or as otherwise required by law and the Declaration, the Holders of the
Common Securities will have no voting rights.

        (b) The Holders of the Common
Securities are entitled, in accordance with Article V of the Declaration,
to vote to appoint, remove or replace any Trustee or to increase or decrease
the number of Trustees.

        (c) Subject to Section 2.6
of the Declaration and only after the Event of Default with respect to
the Capital Securities has been cured, waived, or otherwise eliminated
and subject to

 

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I-7

the requirements of the second to last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and place of conducting
any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under the Declaration,
including (i) directing the time, method, place of conducting any proceeding
for any remedy available to the Note Trustee, or exercising any trust or
power conferred on the Note Trustee with respect to the Notes, (ii) waive
any past default and its consequences that is waivable under Section 5.01
of the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Notes shall be due and payable, provided
that, where a consent or action under the Indenture would require
the consent or act of the Holders of a Super Majority, the Property Trustee
only may give such consent or take such action at the written direction
of the Holders of at least the proportion in liquidation amount of the
Common Securities which the relevant Super Majority represents of the aggregate
principal amount of the Notes outstanding. Pursuant to this Section 6(c),
the Property Trustee shall not revoke any action previously authorized
or approved by a vote of the Holders of the Capital Securities. Other than
with respect to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Note Trustee as set forth
above, the Property Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Property Trustee has obtained an opinion of tax counsel to the
effect that for purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such
action. If the Property Trustee fails to enforce its rights under the Declaration,
any Holder of Common Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against any Person to enforce
the Property Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Property Trustee or any other Person.

        Any approval or direction
of Holders of Common Securities may be given at a separate meeting of Holders
of Common Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to written consent.
The Regular Trustees will cause a notice of any meeting at which Holders
of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed
to each Holder of record of Common Securities. Each such notice will include
a statement setting forth (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.

        No vote or consent of the
Holders of the Common Securities will be required for the Trust to redeem
and cancel Common Securities or to distribute the Notes in accordance with
the Declaration and the terms of the Securities.

        7. Amendments to Declaration
and Indenture.

        (a) In addition to any requirements
under Section 12.1 of the Declaration, if any proposed amendment to the
Declaration provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences
or special rights of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the

 

<Page>                                                               
I-8

dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of outstanding Securities
voting together as a single class, will be entitled to vote on such amendment
or proposal (but not on any other amendment or proposal) and such amendment
or proposal shall not be effective except with the approval of the Holders
of at least as a Majority in liquidation amount of the Securities, affected
thereby, provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Capital Securities or
only the Common Securities, then only the affected class will be entitled
to vote on such amendment or proposal and such amendment or proposal shall
not be effective except with the approval of a Majority in liquidation
amount of such class of Securities.

        (b) In the event the consent
of the Property Trustee as the holder of the Notes is required under the
Indenture with respect to any amendment, modification or termination of
the Indenture or the Notes, the Property Trustee shall request the written
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of the Securities voting together as a single class; provided, however,
that where as a consent under the Indenture would require the consent of
the holders of as a Super Majority, the Property Trustee may only give
such consent at the direction of the Holders of at least the proportion
in liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Notes outstanding;
provided,
further,
that the Property Trustee shall not take any action in accordance with
the directions of the Holders of the Securities under this Section 7(b)
unless the Property Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such
action.

        8. Pro Rata.

        A reference in these terms
of the Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and
is continuing, in which case any funds available to make such payment shall
be paid first to each Holder of the Capital Securities pro rata according
to the aggregate liquidation amount of Capital Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Capital Securities
outstanding, and only after satisfaction of all amounts owed to the Holders
of the Capital Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities held
by the relevant Holder relative to the aggregate liquidation amount of
all Common Securities outstanding.

        9. Ranking.

        The Capital Securities rank
paripassu
and payment thereon shall be made pro rata with the Common Securities except
that, where an Event of Default occurs and is continuing, the rights of
Holders of the Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated
to the rights to payment of the Holders of the Capital Securities.

 

 

 

<Page>                                                                
I-9

        10. Listing.

        An application will be made
to list the Capital Securities on the New York Stock Exchange; otherwise,
unless otherwise determined by the Regular Trustees, the Capital Securities
shall not be listed for quotation on any stock exchange.

        11. Extension of Stated
Maturity.

        If the Maturity Date of the
Notes is extended, the Stated Maturity of the Securities shall automatically
extend at the same time as the Maturity Date of the Notes are extended
and to the Extended Maturity Date (as defined in the Indenture).

        12. Acceptance of Securities
Guarantee and Indenture.

        Each Holder of Capital Securities
and Common Securities, by the acceptance thereof, agrees to the provisions
of the Capital Securities Guarantee and the Common Securities Guarantee,
respectively, including the subordination provisions therein and to the
provisions of the Indenture.

        13. No Preemptive Rights.

        The Holders of the Securities
shall have no preemptive rights to subscribe for any additional securities.

        14. Miscellaneous.

        These terms constitute a
part of the Declaration.

        The Sponsor will provide
a copy of the Declaration and the Capital Securities Guarantee or the Common
Securities Guarantee (as may be appropriate), and the Indenture to a Holder
without charge on written request to the Sponsor at its principal place
of business.

 

 

 

 

<Page>                                                                   
I-10

 

Dated: December 6, 2001

BANK OF AMERICA CORPORATION

as Sponsor
By: ________________________________

Name: Karen A. Gosnell

Title: Senior Vice President









Accepted:

BAC Capital Trust I

______________________

James T. Houghton

Regular Trustee

 

 

______________________

Karen A. Gosnell

Regular Trustee




 

 

<Page>                                                                    
I-11









ANNEX I-A

ADDITIONAL SECURITIES

BAC CAPITAL TRUST I


        Pursuant to Section 7.1 of
the Amended and Restated Declaration of Trust dated as of December 6, 2001,
BAC Capital Trust I has approved and issued (i) [_______________] Capital
Securities with an aggregate liquidation amount of [$____________] and
(ii) [__________] Common Securities with an aggregate liquidation amount
of [$____________].

        Pursuant to the exercise
of an Option granted in the Underwriting Agreement, the Trust is, upon
execution of this Annex I-A, issuing Additional Securities in the amounts
and with the liquidation amounts as follows:

        (i) [_______________] Capital
Securities with an aggregate liquidation amount of [$____________]; and

        (ii) [_______________] Common
Securities with an aggregate liquidation amount of [$____________].

        Following the date of this
Annex I-A, the terms "Capital Securities" and "Common Securities" as used
in the Declaration shall mean the aggregate of the Securities as originally
issued and any Additional Securities issued by the Trust through the date
hereof.

Date: ____________, ____

                                                                            
BAC CAPITAL TRUST I

                                                                            
By:_____________________

                                                                                          
Regular Trustee

                                                                           
BANK OF AMERICA CORPORATION, as Sponsor

                                                                           
By:_____________________

                                                                               
______________________(Title)

 

 

 










<Page>                                                         
I-A-1

 

 

 

EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE


        This Capital Security is
a Global Security within the meaning of the Declaration hereinafter referred
to and is registered in the name of The Depository Trust Company (the "Depositary")
or a nominee of the Depositary. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the Depositary
or its nominee only in the limited circumstances described in the Declaration
and no transfer of this Capital Security (other than a transfer of this
Capital Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or to another nominee
of the Depositary) may be registered except in limited circumstances.

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

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

Certificate Number

__-R-_____________                                                                        
CUSIP NO. [_________]


BAC CAPITAL TRUST I

___% Capital Securities

(liquidation amount $25 per Capital Security)


        BAC CAPITAL TRUST I, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that CEDE & CO. (the "Holder") is the registered owner
of _______ Capital Securities of the Trust representing undivided preferred
beneficial interests in the assets of the Trust designated the ___% Capital
Securities (liquidation amount $25 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities represented hereby are issued
and shall in all respects be subject to the provisions of the Amended and

 

<Page>                                                                        
A1-1

Restated Declaration of Trust of the Trust dated as of December __,
2001, as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Capital Securities as set
forth in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration. The Holder
is entitled to the benefits of the Capital Securities Guarantee to the
extent provided therein. The Declaration permits the Sponsor to dissolve
the Trust at any time. The Sponsor will provide a copy of the Declaration,
the Capital Securities Guarantee and the Indenture to a Holder without
charge upon written request to the Sponsor at its principal place of business.

        Upon receipt of this certificate,
the Holder is bound by the Declaration and is entitled to the benefits
thereunder.

        By acceptance, the Holder
agrees to treat, for United States federal income tax purposes, the Notes
as indebtedness and the Capital Securities as evidence of indirect beneficial
ownership of the Notes.

        IN WITNESS WHEREOF, the Trust
has executed this certificate as of ________, 20__.

                                                                   
BAC CAPITAL TRUST I

                                                                   
By:________________________________

                                                                   
Name: Karen A. Gosnell

                                                                   
Title: Regular Trustee

 

<Page>                                                                     
A1-2


CERTIFICATE OF AUTHENTICATION


            This
certificate represents the Capital Securities referred to in the within-mentioned
Declaration.

Dated:

                                                                       
THE BANK OF NEW YORK

                                                                       
as Property Trustee

                                                                       
By:________________________________

                                                                       
Name:

                                                                       
Title:

 

 

 






<Page>                                               
A1-3



[FORM OF REVERSE OF SECURITY]

        Distributions payable on
each Capital Security will be fixed at a rate per annum of ___% (the "Coupon
Rate") of the stated liquidation amount of $25 per Capital Security, such
rate being the rate of interest payable on the Notes to be held by the
Property Trustee on behalf of the Trust. Distributions in arrears for more
than one quarter period will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable law). A Distribution
is payable only to the extent that payments are made in respect of the
Notes held by the Property Trustee and to the extent the Property Trustee
has funds available therefor. The amount of Distributions payable for any
period will be computed on the basis of a 360-day year of twelve 30-day
months.

        Except as otherwise described
below, Distributions on the Capital Securities will be cumulative, will
accrue from the date of original issuance and will be payable quarterly
in arrears on March 15, June 15, September 15 and December 15 of each year,
commencing on March 15, 2002 to the person in whose name the Capital Security
is registered at the close of business on the regular record date for such
installment, which shall be the close of business on the Business Day next
preceding such payment date  [IF PURSUANT TO THE TERMS OF THE DECLARATION,
THE SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL SECURITY ] which shall
be the close of business on March 1, June 1, September 1 or December 1].
The Note Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on
the Notes for a period not exceeding 20 consecutive quarterly periods (each
an "Extension Period"), provided that no Extension Period
shall last beyond the date of the maturity of the Notes. As a consequence
of such deferral, Distributions will also be deferred hereunder for the
same period. Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Note
Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly periods or extend beyond
the maturity date of the Notes. Payments of accrued Distributions will
be payable to Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then
due, the Note Issuer may commence a new Extension Period, subject to the
above requirements.

        THE CAPITAL SECURITIES SHALL
BE REDEEMABLE AS PROVIDED IN THE DECLARATION.




<Page>                                                                     
A1-4

_____________________
ASSIGNMENT


FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(Insert assignee's social security or tax identification number)

________________________________________________________________

________________________________________________________________

________________________________________________________________

(Insert address and zip code of assignee)

and irrevocably appoints

_________________________________________________________________

_________________________________________________________________

___________________________________________________________ agent to
transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.

Date: _______________________

Signature: __________________

(Sign exactly as your name appears on the other side of this Capital
Security Certificate)

Signature Guarantee*: ___________________________________

________________________

*Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit union
meeting the requiremens of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.

 

 

<Page>                                                                            
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EXHIBIT A-2

FORM OF COMMON SECURITY CERTIFICATE


        THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND ARE "RESTRICTED SECURITIES" AS THAT TERM
IS DEFINED IN RULE 144A UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION
OF THE TRUST.

        THE COMMON SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE BENEFICIALLY OWNED BY A PERSON WHO MAY BE AN "AFFILIATE"
WITHIN THE MEANING OF RULE 144 UNDER THE ACT. CONSEQUENTLY, THE SECURITIES
MAY NOT BE TRANSFERRED UNLESS SUCH TRANSFER IS IN COMPLIANCE WITH SAID
RULE OR UNLESS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL FOR THE TRUST THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT.

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

Certificate Number

__-R_____________


BAC CAPITAL TRUST I

___% Common Securities

(liquidation amount $25 per Common Security)


        BAC CAPITAL TRUST I, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that BANK OF AMERICA CORPORATION (the "Holder") is the
registered owner of ______ common securities of the Trust representing
undivided common beneficial interests in the assets of the Trust designated
the ___% Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). The Common Securities are transferable on the
books and records of the Trust, in person or by a duly

 

<Page>                                                                           
A2-1

authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions
of the Amended and Restated Declaration of Trust of the Trust dated as
of December __, 2001, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms used herein
but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to
the extent provided therein. The Declaration permits the Sponsor to dissolve
the Trust at any time. The Sponsor will provide a copy of the Declaration,
the Common Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business.

        Upon receipt of this certificate,
the Sponsor is bound by the Declaration and is entitled to the benefits
thereunder.

        By acceptance, the Holder
agrees to treat, for United States federal income tax purposes, the Notes
as indebtedness and the Common Securities as evidence of indirect beneficial
ownership in the Notes.

        IN WITNESS WHEREOF, the Trust
has executed this certificate as of ________, 20___.

                                                                      
BAC CAPITAL TRUST I

By:________________________________

 

Name: Karen A. Gosnell

Title: Regular Trustee

 

 

 

 









<page>                                                                            
A2-2

 

 





CERTIFICATE OF AUTHENTICATION


        This certificate represents
the Common Securities referred to in the within-mentioned Declaration.

Dated:

THE BANK OF NEW YORK

as Property Trustee
By:________________________________

Name:

Title:

 

 

 

 







<Page>                                                      
A2-3



 

 


[FORM OF REVERSE OF SECURITY]


        Distributions payable on
each Common Security will be fixed at a rate per annum of ____% (the "Coupon
Rate") of the stated liquidation amount of $25 per Common Security, such
rate being the rate of interest payable on the Notes to be held by the
Property Trustee. Distributions in arrears will continue to accumulate
at the same rate compounded quarterly. A Distribution is payable only to
the extent that payments are made in respect of the Notes held by the Property
Trustee and to the extent the Property Trustee has funds available therefor.
The amount of Distributions payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months.

        Except as otherwise described
below, Distributions on the Common Securities will be cumulative, will
accrue from the date of original issuance and will be payable quarterly
in arrears on March 15, June 15, September 15 and December 15 of each year,
commencing on March 15, 2002, to Holders of record 15 days prior to such
payment dates, which payment dates shall correspond to the interest payment
dates on the Notes. The Note Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from
time to time on the Notes for a period not exceeding 20 consecutive quarterly
periods (each an "Extension Period"), provided that no Extension
Period shall last beyond the date of the maturity of the Notes. As a consequence
of such deferral, Distributions will also be deferred hereunder for the
same period. Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Note
Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly periods or extend beyond
the maturity date of the Notes. Payments of accrued Distributions will
be payable to Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then
due, the Note Issuer may commence a new Extension Period, subject to the
above requirements.

        THE COMMON SECURITIES SHALL
BE REDEEMABLE AS PROVIDED IN THE DECLARATION.

 

 

 

 

 

<Page>                                                                      
A2-4


_____________________

ASSIGNMENT


FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

(Insert assignee's social security or tax identification number)

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

(Insert address and zip code of assignee)

and irrevocably appoints ________________________________________ ________________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.

Date: _______________________

Signature:  __________________________________________________

(Sign exactly as your name appears on the other side of this Common
Security Certificate)

Signature Guarantee*: _________________________________

______________________________

*  Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.

 

 

 

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