CAPITAL SECURITIES GUARANTEE AGREEMENT


 

                                                            
EXHIBIT 4.5

 

CAPITAL SECURITIES GUARANTEE AGREEMENT

BAC Capital Trust I

Dated as of December 14, 2001



 
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ARTICLE 1

DEFINITIONS AND INTERPRETATION


SECTION 1.1    Definitions and Interpretation ..............................................................................1


ARTICLE 2

TRUST INDENTURE ACT


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

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

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

SECTION 2.4    Periodic Reports to Capital Securities
Guarantee Trustee ....................................5

SECTION 2.5    Evidence of Compliance with Conditions
Precedent ............................................5

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

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

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


ARTICLE 3

POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE TRUSTEE


SECTION 3.1    Powers and Duties of the Capital Securities
Guarantee Trustee ............................6

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

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


ARTICLE 4

CAPITAL SECURITIES GUARANTEE TRUSTEE


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

SECTION 4.2    Appointment, Removal and Resignation
of Capital Securities Guarantee Trustee ...11


ARTICLE 5

GUARANTEE


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

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

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

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

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

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

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


ARTICLE 6

LIMITATION OF TRANSACTIONS; SUBORDINATION


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

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

 

 

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ARTICLE 7

TERMINATION


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


ARTICLE 8

INDEMNIFICATION


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

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


ARTICLE 9

MISCELLANEOUS


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

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

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

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

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

 

 

 

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CROSS-REFERENCE TABLE*

Section of

Trust Indenture Act                                                                        
Section of

of 1939, as amended                                                                    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_______________

 

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

 

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CAPITAL SECURITIES GUARANTEE AGREEMENT


        This GUARANTEE AGREEMENT
(the "Capital Securities Guarantee"), dated as of December 14, 2001, is
executed and delivered by BANK OF AMERICA CORPORATION, a Delaware corporation
(the "Guarantor"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Capital Securities Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the
Capital Securities (as defined herein) of BAC Capital Trust I, a Delaware
statutory business trust (the "Issuer").

        WHEREAS, pursuant to an Amended
and Restated Declaration of Trust (the "Declaration"), dated as of December
6, 2001, among the trustees of the Issuer named therein, the Guarantor,
as sponsor, and the holders from time to time of undivided beneficial interests
in the assets of the Issuer, the Issuer is issuing on the date hereof 20,000,000
Capital Securities representing undivided preferred beneficial interests
in the assets of the Issuer, designated the BAC Capital Trust I 7% Capital
Securities (the "Capital Securities"), initially in the aggregate liquidation
amount of $500,000,000;

        WHEREAS, pursuant to the
terms of an Underwriting Agreement dated as of December 6, 2001, by and
among the Guarantor, as sponsor, the Issuer and the Underwriters named
therein (the "Underwriting Agreement"), the Issuer has agreed to issue
up to an additional 3,000,000 Capital Securities with an aggregate liquidation
amount of up to $75,000,000 upon exercise of an option granted in the Underwriting
Agreement to the Underwriters (the "Option");

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

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

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

                                                               
ARTICLE I

                                            
DEFINITIONS AND INTERPRETATION

SECTION 1.1  Definitions and Interpretation.


In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned
to them in this Section 1.1;

 

 

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

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

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

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

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

(g) a reference to the singular includes the plural and vice versa.
        "Affiliate" has the same
meaning as given to that term in Rule 405 of the Securities Act of 1933,
as amended, or any successor rule thereunder.

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

        "Business Day" means
any day other than a day on which federal or state banking institutions
in New York, New York or Charlotte, North Carolina are authorized or obligated
by law, executive order or regulation to close.

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

        "Capital Securities"
means the total number of BAC Capital Trust I 7% Capital Securities (liquidation
amount $25 per Capital Security) issued pursuant to the Declaration representing
undivided preferred beneficial interests in the assets of the Issuer, including
any Capital Securities issued upon exercise of the Option.

        "Common Securities"
means the securities representing undivided common beneficial interests
in the assets of the Issuer, including any additional Common Securities
issued in connection with the exercise of the Option.

        "Corporate Trust Office"
means the office of the Capital Securities Guarantee Trustee at which the
corporate trust business of the Capital Securities Guarantee Trustee shall,
at

 

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any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 101 Barclay Street, 21
West, New York, New York 10286.

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

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

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

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

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

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

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

 

 

 

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        "Notes" means the
series of junior subordinated debt securities of the Guarantor designated
the 7% Junior Subordinated Notes, due 2031 held by the Property Trustee
of the Issuer on behalf of the Trust.

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

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

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

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

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

        "Person" means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.

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

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

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

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

 

 

 

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ARTICLE 2

                                                     
TRUST INDENTURE ACT

SECTION 2.1  Trust Indenture Act; Application.

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

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

SECTION 2.2  Lists of Holders of Securities.

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

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

SECTION 2.3  Reports by the Capital Securities Guarantee Trustee.

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

SECTION 2.4  Periodic Reports to Capital Securities Guarantee
Trustee.

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

SECTION 2.5  Evidence of Compliance with Conditions Precedent.

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

 

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

SECTION 2.6  Events of Default; Waiver.

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

SECTION 2.7 Event of Default; Notice.

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

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

SECTION 2.8  Conflicting Interests.

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

                                                              
ARTICLE 3

                                      
POWERS, DUTIES AND RIGHTS OF

                            
CAPITAL SECURITIES GUARANTEE TRUSTEE

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

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

 

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

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

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

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



(i) prior to the occurrence of any Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
    (A) the duties and obligations of the Capital Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Capital Securities Guarantee, and the Capital Securities Guarantee
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Capital Securities Guarantee,
and no implied covenants or obligations shall be read into this Capital
Securities Guarantee against the Capital Securities Guarantee Trustee;
and

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

 

 

 

 
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(ii) the Capital Securities Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Capital Securities Guarantee Trustee, unless it shall be proved that the
Capital Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Capital Securities Guarantee Trustee, or exercising any trust or power
conferred upon the Capital Securities Guarantee Trustee under this Capital
Securities Guarantee; and

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

 

SECTION 3.2  Certain Rights of Capital Securities Guarantee Trustee.



(a) Subject to the provisions of Section 3.1:
        (i) The Capital Securities
Guarantee Trustee may rely conclusively, and shall be fully protected in
acting or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.

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

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

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

 

 

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

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

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

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

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

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

 

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

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

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

 

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

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


                                                                          
ARTICLE 4

                                           
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1  Capital Securities Guarantee Trustee; Eligibility.


(a) There shall at all times be a Capital Securities Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and

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

 

 

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

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

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

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

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

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

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

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

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

 

 

 

 

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ARTICLE 5

                                                                          
GUARANTEE

SECTION 5.1  Guarantee.

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

SECTION 5.2  Waiver of Notice and Demand.

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

SECTION 5.3 Obligations Not Affected.

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

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

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

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

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

 

 

 

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

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

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

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

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

SECTION 5.4  Rights of Holders.

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

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

SECTION 5.5  Guarantee of Payment.

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

SECTION 5.6  Subrogation.

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

 

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

SECTION 5.7  Independent Obligations.

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

                                                                       
ARTICLE 6

                             
LIMITATION OF TRANSACTIONS; SUBORDINATION

SECTION 6.1  Limitation of Transactions.

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

SECTION 6.2  Ranking.

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

 

 

 

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ARTICLE 7

                                                          
TERMINATION

SECTION 7.1  Termination.

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

                                                               
ARTICLE 8

                                                     
INDEMNIFICATION

SECTION 8.1  Exculpation.

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

        (b) An Indemnified Person
shall be fully protected in relying in good faith upon the records of the
Guarantor and upon such information, opinions, reports or statements presented
to the Guarantor by any Person as to matters the Indemnified Person reasonably
believes are within such other Person's professional or expert competence
and who has been selected with reasonable care by or on behalf of the Guarantor,
including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions
to Holders of Capital Securities might properly be paid.

SECTION 8.2  Indemnification.

        The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Capital Securities Guarantee.

 

 

 

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ARTICLE 9

                                                                
MISCELLANEOUS

SECTION 9.1  Successors and Assigns.

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

SECTION 9.2  Amendments.

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

SECTION 9.3  Notices.

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

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



The Bank of New York

101 Barclay Street, 21 West

New York, New York 10286

Attention: Corporate Trust Trustee Administration

Telecopy: (212)815-5915

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


Bank of America Corporation

Bank of America Corporate Center

100 North Tryon Street

NC1-007-23-01

Charlotte, North Carolina 28255

Attention: Corporate Treasury

Telecopy: (704) 386-0270

 

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

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

SECTION 9.4  Benefit.

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

SECTION 9.5  Governing Law.

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

 

 

 

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

                                                                   
BANK OF AMERICA CORPORATION, as Guarantor

                                                                   
By: /s/ KAREN A. GOSNELL

                                                                   
Name: Karen A. Gosnell

                                                                   
Title: Senior Vice President

 

                                                                    
THE BANK OF NEW YORK, as Capital Securities

                                                                     
Guarantee Trustee

                                                                    
By: /s/ DEREK C. KETTEL

                                                                    
Name: Derek C. Kettel

                                                                    
Title: Agent

 

 

 

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