<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
NATIONSBANK CORPORATION NB CAPITAL TRUST III
(Exact name of registrant as specified in charter) (Exact name of registrant as specified in charter)
NORTH CAROLINA DELAWARE
(State or other jurisdiction or organization) (State or other jurisdiction or organization)
56-0906609 56-6490302
(I.R.S. employer identification number) (I.R.S. employer identification number)
NB CAPITAL TRUST IV NB CAPITAL TRUST V
(Exact name of registrant as specified in charter) (Exact name of registrant as specified in charter)
DELAWARE DELAWARE
(State or other jurisdiction or organization) (State or other jurisdiction or organization)
56-6492031 56-6492034
(I.R.S. employer identification number) (I.R.S. employer identification number)
</TABLE>
NATIONSBANK CORPORATION, NATIONSBANK CORPORATE CENTER, CHARLOTTE, NORTH CAROLINA
28255 (704) 386-5000
(address, including zip code, and telephone number, including area code of
registrant's principal executive offices)
PAUL J. POLKING
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(704) 386-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
<TABLE>
<S> <C>
BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
SMITH HELMS MULLISS & MOORE, L.L.P. STROOCK & STROOCK & LAVAN
214 NORTH CHURCH STREET SEVEN HANOVER SQUARE
CHARLOTTE, NORTH CAROLINA 28202 NEW YORK, NEW YORK 10004
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C> <C>
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (1)(2)
<S> <C> <C> <C>
Junior Subordinated Notes of
NationsBank Corporation (3)
Preferred Securities of NB Capital
Trust III, NB Capital Trust IV and
NB Capital Trust V
Guarantees of Preferred Securities
of NB Capital Trust III, NB Capital
Trust IV and NB Capital Trust V and
certain
back-up undertakings (4)
Total $1,031,000,000(1) 100% $1,031,000,000(1)
<CAPTION>
TITLE OF EACH
CLASS OF SECURITIES AMOUNT OF
TO BE REGISTERED REGISTRATION FEE
<S> <C>
Junior Subordinated Notes of
NationsBank Corporation (3) N/A
Preferred Securities of NB Capital
Trust III, NB Capital Trust IV and
NB Capital Trust V N/A
Guarantees of Preferred Securities
of NB Capital Trust III, NB Capital
Trust IV and NB Capital Trust V and
certain
back-up undertakings (4) N/A
Total $312,424
</TABLE>
(1) Such amount represents the aggregate principal amount of Junior Subordinated
Notes that may be issued by NationsBank Corporation. In addition, each of NB
Capital Trust III, NB Capital Trust IV and NB Capital Trust V may issue
Preferred Securities having an aggregate initial public offering price of up
to $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. Such amount is exclusive of accrued interest and
distributions, if any.
(3) The Junior Subordinated Notes of NationsBank Corporation will be purchased
by NB Capital Trust III, NB Capital Trust IV or NB Capital Trust V with the
proceeds of the sale of the Preferred Securities.
(4) No separate consideration will be received for any Guarantees. The
Guarantees include the rights of holders of the Preferred Securities under
the Guarantees and certain back-up undertakings, comprised of obligations of
NationsBank Corporation under the Indenture and any supplemental indentures
including responsibility for certain costs, expenses, debts and liabilities
of each of NB Capital Trust III, NB Capital Trust IV and NB Capital Trust V,
as well as obligations under the related Declarations of Trust, each as
described in the Registration Statement. The Guarantees, when taken together
with the Corporation's obligations under the Junior Subordinated Notes and
the back-up undertakings, will provide a full and unconditional guarantee,
on a subordinated basis, to the extent the applicable NB Capital Trust shall
have funds available therefor, by the Corporation of payments due on the
Preferred Securities of such Trust.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
EXPLANATORY NOTE
The Prospectus constituting a part of this Registration Statement also
includes a form of market maker prospectus intended for use by NationsBanc
Capital Markets, Inc., a direct wholly-owned subsidiary of NationsBank
Corporation, in connection with offers and sales related to secondary market
transactions in the securities offered pursuant to the Prospectus. The alternate
front cover page, alternate page 10 and alternate back cover page to be used in
such form of market maker prospectus follow such Prospectus. All other pages of
the Prospectus are also to be used for the market maker prospectus.
<PAGE>
(A redherring appears on the left-hand side of this page, rotated 90 degrees.
Text follows:)
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE
BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION
OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 19, 1996
PROSPECTUS
NATIONSBANK(Register mark)
JUNIOR SUBORDINATED NOTES
NB CAPITAL TRUST III
NB CAPITAL TRUST IV
NB CAPITAL TRUST V
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
NATIONSBANK(Register mark)
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time up to $1,031,000,000 in aggregate principal amount of its
subordinated debentures, notes or other evidence of indebtedness (the "Junior
Subordinated Notes") in one or more series and in amounts, at prices and on
terms to be determined at the time of an offering. The Junior Subordinated Notes
when issued will be unsecured obligations of the Corporation. The Corporation's
obligations under the Junior Subordinated Notes will be subordinate and junior
in right of payment to other indebtedness of the Corporation, as may be
described in an accompanying Prospectus Supplement (the "Prospectus Supplement")
and in an aggregate amount to be set forth as of the most recent practicable
date in such Prospectus Supplement.
NB Capital Trust III, NB Capital Trust IV and NB Capital Trust V (each, an
"NB Capital Trust"), each a statutory business trust formed under the laws of
the State of Delaware, may offer, from time to time, capital securities
representing undivided preferred beneficial interests in the assets of the
respective NB Capital Trust ("Preferred Securities") having an aggregate
liquidation value of not in excess of $1,000,000,000. The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of an
NB Capital Trust out of moneys held by such NB Capital Trust, and payment on
liquidation, redemption or otherwise with respect to such Preferred Securities,
will be guaranteed by NationsBank to the extent described herein (each, a
"Preferred Securities Guarantee"). See "DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEES." The Corporation's obligations under each Preferred Securities
Guarantee will be subordinate and junior in right of payment to all other
liabilities, including contingent liabilities, of the Corporation and will rank
pari passu with the most senior preferred or preference stock now or hereafter
issued by the Corporation and with any guarantee now or hereafter entered into
by NationsBank in respect of any preferred or preference stock of any affiliate
of the Corporation. A Preferred Securities Guarantee relating to the Preferred
Securities of an NB Capital Trust, when taken together with the Corporation's
obligations under the Junior Subordinated Notes held by such Trust, the
Indenture (as defined herein) and the Declaration of such Trust (as described
herein), including the Corporation's obligation to pay all costs, expenses,
debts and liabilities of such Trust imposed by the Indenture (other than with
respect to the Trust Securities (as defined herein) of such Trust), will provide
a full and unconditional guarantee, on a subordinated basis to the extent such
Trust shall have funds available therefor by the Corporation of payments due on
such Preferred Securities.
(CONTINUED ON NEXT PAGE)
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
NATIONSBANK (EXCEPT TO THE EXTENT THAT THE PREFERRED SECURITIES
ARE GUARANTEED BY NATIONSBANK AS DESCRIBED HEREIN), ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT
RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
Junior Subordinated Notes may be issued and sold from time to time in one
or more series to an NB Capital Trust, or a trustee of such Trust, in connection
with the investment of the proceeds from the offering of Preferred Securities
and Common Securities (as defined herein) of such Trust. The Junior Subordinated
Notes purchased by an NB Capital Trust may be subsequently distributed pro rata
to holders of the Trust Securities in connection with the dissolution of such
Trust upon the occurrence of certain events as may be described in an
accompanying Prospectus Supplement relating to such securities. The Junior
Subordinated Notes, the Preferred Securities and the related Preferred
Securities Guarantees are sometimes collectively referred to hereafter as the
"Offered Securities."
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering. Specific terms of the Junior Subordinated
Notes of any series and of the Preferred Securities of the NB Capital Trust
which will purchase and hold such Notes (the terms of which Preferred Securities
will mirror the terms of such Junior Subordinated Notes), in respect of which
this prospectus (the "Prospectus") is delivered will be set forth in the
Prospectus Supplement relating to such securities. Such Prospectus Supplement
will describe, without limitation and where applicable, the following: (i) in
the case of Junior Subordinated Notes, the specific designation, aggregate
principal amount, denomination, maturity, premium, if any, any exchange,
conversion, prepayment, redemption or sinking fund provisions, if any, interest
rate (which may be fixed or variable), if any, the time and method of
calculating interest payments, if any, dates on which premium, if any, and
interest, if any, will be payable, the right of NationsBank, if any, to defer
payment of interest on the Junior Subordinated Notes and the maximum length of
such deferral period, the initial public offering price, subordination terms,
any listing on a securities exchange and any other specific terms of the
offering; and (ii) in the case of Preferred Securities, the designation, number
of securities, liquidation preference per security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, and any other rights, preferences, privileges,
limitations or restrictions relating to the Preferred Securities, as well as the
terms upon which the proceeds of the sale of the Preferred Securities shall be
used to purchase a specific series of Junior Subordinated Notes of NationsBank.
The Prospectus Supplement relating to any Offered Securities also will contain
specific information regarding any special prepayment or redemption provisions
of the particular securities offered thereby.
NationsBank or an NB Capital Trust, as applicable, may sell the Offered
Securities directly, through agents designated from time to time, or through
underwriters or dealers. See "PLAN OF DISTRIBUTION." If any agents of
NationsBank or any such NB Capital Trust or any underwriters or dealers are
involved in the sale of the Offered Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be set
forth in the Prospectus Supplement relating to such Offered Securities.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NATIONSBANK
CORPORATION, ANY OF THE NB CAPITAL TRUSTS OR ANY AGENTS, UNDERWRITERS OR
DEALERS. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF NATIONSBANK CORPORATION OR ANY OF THE NB CAPITAL TRUSTS SINCE THE DATE
HEREOF. NEITHER THIS PROSPECTUS NOR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 as filed March 29, 1996;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 as filed May 10, 1996, June 30, 1996 as filed August
14, 1996, and September 30, 1996 as filed November 13, 1996;
(c) The Corporation's Current Reports on Form 8-K filed January 12,
1996, February 1, 1996, March 8, 1996, April 17, 1996, May 16, 1996, July
5, 1996, July 31, 1996, September 6, 1996 (as amended by Form 8-K/A-1 filed
September 11, 1996 and Form 8-K/A-2 filed November 13, 1996), September 20,
1996 (as amended by Form 8-K/A filed September 23, 1996), October 25, 1996,
November 14, 1996, December 4, 1996 and December 17, 1996; and
(d) The description of the Corporation's Common Stock contained in its
registration statement filed pursuant to Section 12 of the Exchange Act, as
modified by the Corporation's Current Report on Form 8-K filed on September
21, 1994.
All reports and any definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Offered Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO JOHN
E. MACK, SENIOR VICE PRESIDENT AND TREASURER, NATIONSBANK CORPORATION,
NATIONSBANK CORPORATE CENTER, CORPORATE TREASURY DIVISION, CHARLOTTE, NORTH
CAROLINA 28255. TELEPHONE REQUESTS MAY BE DIRECTED TO (704) 386-5972.
AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by NationsBank and the NB Capital Trusts with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, although
it does include a summary of the material terms of the Indenture and the
Declarations. Reference is made to such Registration Statement and to the
exhibits relating thereto for further information with respect to NationsBank,
the NB Capital Trusts and the Offered Securities. Any statements contained
herein concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or incorporated by
reference herein are not necessarily complete, and, in each instance, reference
is made to the copy of such document so filed for a more complete description of
the matter involved. Each such statement is qualified in its entirety by such
reference.
NationsBank is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, Suite 1300, New
3
<PAGE>
York, New York 10048; and the Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material may also be obtained
by mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, upon payment of prescribed rates. The
Commission maintains an Internet web site that contains reports, proxy and
information statements and other information regarding issuers who file
electronically with the Commission. The address of that site is
http://www.sec.gov. In addition, reports, proxy statements and other information
concerning NationsBank may be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005 and at the offices of
The Pacific Stock Exchange Incorporated, 301 Pine Street, San Francisco,
California 94104.
No separate financial statements of any of the NB Capital Trusts have been
included herein. NationsBank does not consider that such financial statements
would be material to holders of the Preferred Securities because (i) all of the
voting securities of each of the NB Capital Trusts will be owned, directly or
indirectly, by NationsBank, a reporting company under the Exchange Act, (ii)
none of the NB Capital Trusts has any independent operations but each exists for
the sole purpose of issuing securities representing undivided beneficial
interests in the assets of such Trust and investing the proceeds thereof in
Junior Subordinated Notes issued by NationsBank, and (iii) the Corporation's
obligations described herein and in any accompanying Prospectus Supplement to
provide certain indemnities in respect of and be responsible for certain costs,
expenses, debts and liabilities of each NB Capital Trust under the Indenture and
any supplemental indenture thereto and pursuant to the Declaration of each NB
Capital Trust, the guarantee issued with respect to Preferred Securities issued
by each NB Capital Trust, the Junior Subordinated Notes purchased by each NB
Capital Trust and the provisions of the Indenture, taken together, constitute a
full and unconditional guarantee of payments due on the Preferred Securities.
See "DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES" and "DESCRIPTION OF THE
PREFERRED SECURITIES GUARANTEES."
NB Capital Trust III currently is subject to the informational reporting
requirements under Section 13 of the Exchange Act but has not yet been required
to file any such reports. NB Capital Trusts IV and V currently are not subject
to the reporting requirements under Section 13, but will become subject to such
requirements upon the effectiveness of the Registration Statement. The NB
Capital Trusts, including NB Capital Trust III, intend to seek and expect to
receive exemptions from the Section 13 reporting requirements prior to the
filing deadlines for any such reports.
NATIONSBANK CORPORATION
GENERAL
NationsBank is a multi-bank holding company established as a North Carolina
corporation in 1968 and is registered under the Bank Holding Company Act of
1956, as amended (the "BHCA"), with its principal assets being the stock of its
subsidiaries. Through its banking subsidiaries (the "Banks") and its various
non-banking subsidiaries, NationsBank provides banking and banking-related
services, primarily throughout the Southeast and Mid-Atlantic states and Texas.
The principal executive offices of NationsBank are located at NationsBank
Corporate Center in Charlotte, North Carolina 28255. Its telephone number is
(704) 386-5000.
OPERATIONS
NationsBank provides a diversified range of banking and certain nonbanking
financial services and products through its various subsidiaries. NationsBank
manages its business activities through three major business units: the General
Bank, Global Finance and Financial Services.
The General Bank provides comprehensive services in the commercial and
retail banking fields, including the origination and servicing of home mortgage
loans, the issuance and servicing of credit cards (through a Delaware
subsidiary), indirect lending, dealer finance and certain insurance services.
The General Bank also provides retirement services for defined benefit and
defined contribution plans, full service and discount brokerage services,
investment advisory services, including advising the Nations Fund family of
mutual funds, as well as private banking, fiduciary and investment management
services through subsidiaries of NationsBank. As of September 30, 1996, the
General Bank operated 1,980 banking offices through the following Banks:
NationsBank, N.A. (serving the states of North Carolina, South Carolina,
Maryland and Virginia and the District of Columbia); NationsBank, N.A. (South)
(serving the states of Florida and Georgia); NationsBank of
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<PAGE>
Kentucky, N.A.; NationsBank of Tennessee, N.A.; NationsBank of Texas, N.A.; and
Sun World, N.A. (serving the state of Texas). The General Bank also provides
fully automated, 24-hour cash dispensing and depositing services throughout the
states in which it is located, through 3,609 automated teller machines.
Global Finance provides comprehensive corporate and investment banking as
well as trading and distribution services to domestic and international
customers. The group serves as a principal lender and investor, as well as an
advisor, arranger and underwriter, and manages treasury and trade transactions
for clients and customers. Loan origination and syndication, asset-backed
lending, leasing, factoring, project finance and mergers and acquisitions are
representative of the services provided by the group. Global Finance also
underwrites, trades and distributes a wide range of securities (including
bank-eligible securities and, to a limited extent, bank-ineligible securities as
authorized by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board")), and trades and distributes a wide range of derivative products
in certain interest rate, foreign exchange, commodity and equity markets. Global
Finance provides its services through various offices located in major United
States cities as well as in London, Frankfurt, Singapore, Bogota, Mexico City,
Grand Cayman, Nassau, Seoul, Tokyo, Osaka, Taipei and Hong Kong.
Financial Services includes NationsCredit Consumer Corporation, primarily a
consumer finance subsidiary, and NationsCredit Commercial Corporation, primarily
a commercial finance subsidiary. NationsCredit Consumer Corporation, which has
approximately 331 offices located in 36 states, provides personal, mortgage and
automobile loans to consumers and retail finance programs to dealers.
NationsCredit Commercial Corporation consists of seven divisions that specialize
in one or more of the following areas: equipment loans and leasing; loans for
debt restructuring, mergers and acquisitions and working capital; real estate,
golf/recreational and health care financing; and inventory financing to
manufacturers, distributors and dealers.
As part of its operations, NationsBank regularly evaluates the potential
acquisition of, and holds discussions with, various financial institutions and
other businesses of a type eligible for bank holding company investment. In
addition, NationsBank regularly analyzes the values of, and submits bids for,
the acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. As a general rule, NationsBank
publicly announces such material acquisitions when a definitive agreement has
been reached.
SUPERVISION AND REGULATION
GENERAL. As a registered bank holding company, NationsBank is subject to
the supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which are subject to
regulation, supervision and examination by the Office of the Comptroller of the
Currency (the "Comptroller"). The Banks are also subject to regulation by the
Federal Deposit Insurance Corporation (the "FDIC") and other federal regulatory
agencies. In addition to banking laws, regulations and regulatory agencies,
NationsBank and its subsidiaries and affiliates are subject to various other
laws and regulations and supervision and examination by other regulatory
agencies, all of which directly or indirectly affect the Corporation's
operations, management and ability to make distributions. The following
discussion summarizes certain aspects of those laws and regulations that affect
NationsBank.
The activities of NationsBank, and those of companies which it controls or
in which it holds more than 5% of the voting stock, are limited to banking or
managing or controlling banks or furnishing services to or performing services
for its subsidiaries, or any other activity which the Federal Reserve Board
determines to be so closely related to banking or managing or controlling banks
as to be a proper incident thereto. In making such determinations, the Federal
Reserve Board is required to consider whether the performance of such activities
by a bank holding company or its subsidiaries can reasonably be expected to
produce benefits to the public such as greater convenience, increased
competition or gains in efficiency that outweigh possible adverse effects, such
as undue concentration of resources, decreased or unfair competition, conflicts
of interest or unsound banking practices. Generally, bank holding companies,
such as NationsBank, are required to obtain prior approval of the Federal
Reserve Board to engage in any new activity not previously approved by the
Federal Reserve Board or to acquire more than 5% of any class of voting stock of
any company.
Bank holding companies are also required to obtain the prior approval of
the Federal Reserve Board before acquiring more than 5% of any class of voting
stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994
5
<PAGE>
(the "Interstate Banking and Branching Act"), a bank holding company became able
to acquire banks in states other than its home state beginning September 29,
1995, without regard to the permissibility of such acquisition under state law,
but subject to any state requirement that the bank has been organized and
operating for a minimum period of time, not to exceed five years, and the
requirement that the bank holding company, prior to or following the proposed
acquisition, controls no more than 10% of the total amount of deposits of
insured depository institutions in the United States and no more than 30% of
such deposits in that state (or such lesser or greater amount set by state law).
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, therefore creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity either to "opt out"
of this provision, thereby prohibiting interstate branching in such states, or
to "opt in" at an earlier time, thereby allowing interstate branching within
that state prior to June 1, 1997. Furthermore, pursuant to such act, a bank is
now able to open new branches in a state in which it does not already have
banking operations if the laws of such state permit such DE NOVO branching. Of
those states in which the Banks are located, Delaware, Maryland, North Carolina
and Virginia have enacted legislation to "opt in," thereby permitting interstate
branching prior to June 1, 1997, and Texas has adopted legislation to "opt out"
of the interstate branching provisions (which Texas law currently expires on
September 2, 1999).
As previously described, NationsBank regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies.
CAPITAL AND OPERATIONAL REQUIREMENTS. The Federal Reserve Board, the
Comptroller and the FDIC have issued substantially similar risk-based and
leverage capital guidelines applicable to United States banking organizations.
In addition, those regulatory agencies may from time to time require that a
banking organization maintain capital above the minimum levels, whether because
of its financial condition or actual or anticipated growth.
The Federal Reserve Board risk-based guidelines define a two-tier capital
framework. Tier 1 capital consists of common and qualifying preferred
shareholders' equity, less certain intangibles and other adjustments. Tier 2
capital consists of subordinated and other qualifying debt, and the allowance
for credit losses up to 1.25% of risk-weighted assets. The sum of Tier 1 and
Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50% of which must consist of Tier 1 capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4% and the minimum total capital ratio is 8%.
The Corporation's Tier 1 and total risk-based capital ratios under these
guidelines at September 30, 1996 were 7.05% and 12.05%, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
average total assets. Although the stated minimum ratio is 3%, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3%. The Corporation's leverage ratio at September 30, 1996 was
6.30%. Management believes that NationsBank meets its leverage ratio
requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy
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<PAGE>
of the parent holding company, such guarantee would take priority over the
parent's general unsecured creditors. In addition, FDICIA requires the various
regulatory agencies to prescribe certain non-capital standards for safety and
soundness relating generally to operations and management, asset quality and
executive compensation and permits regulatory action against a financial
institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6%, a total capital ratio of at least
10% and a leverage ratio of at least 5% and not be subject to a capital
directive order. An "adequately capitalized" institution must have a Tier 1
capital ratio of at least 4%, a total capital ratio of at least 8% and a
leverage ratio of at least 4%, or 3% in some cases. Under these guidelines, as
of September 30, 1996, each of the Banks was considered well capitalized.
On October 21, 1996, the Federal Reserve Board issued a press release (the
"Federal Reserve Press Release") announcing that it had approved the use of
certain cumulative preferred stock instruments, such as the Preferred
Securities, in Tier 1 capital for bank holding companies. Because NationsBank
intends to treat the Preferred Securities in Tier 1 capital and, under current
United States federal tax law, will receive a tax deduction for interest in
respect of the Junior Subordinated Notes, the issuance of the Offered Securities
is a cost-effective method of raising capital on an after-tax basis.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. This
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have recently adopted final
regulations requiring regulators to consider interest rate risk (when the
interest rate sensitivity of an institution's assets does not match the
sensitivity of its liabilities or its off-balance-sheet position) in the
evaluation of a bank's capital adequacy. Concurrently, banking agencies have
proposed a methodology for evaluating interest rate risk. After gaining
experience with the proposed measurement process, these banking agencies intend
to propose further regulations to establish an explicit risk-based capital
charge for interest rate risk.
DISTRIBUTIONS. The Corporation's funds for cash distributions to its
shareholders are derived from a variety of sources, including cash and temporary
investments. The primary source of such funds, however, is dividends received
from the Banks. The amount of dividends that each Bank may declare in a calendar
year without approval of the Comptroller is the Bank's net profits for that
year, as defined by statute, combined with its net retained profits, as defined,
for the preceding two years. In addition, from time to time NationsBank applies
for, and may receive, permission from the Comptroller for one or more of the
Banks to declare special dividends. As of January 1, 1996, the Banks can
initiate dividend payments without prior regulatory approval of up to $905
million plus an additional amount equal to their net profits for 1996 up to the
date of any such dividend declaration.
In addition to the foregoing, the ability of NationsBank and the Banks to
pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of NationsBank, its shareholders and its creditors
to participate in any distribution of the assets or earnings of its subsidiaries
is further subject to the prior claims of creditors of the respective
subsidiaries.
SOURCE OF STRENGTH. According to Federal Reserve Board policy, bank holding
companies are expected to act as a source of financial strength to each
subsidiary bank and to commit resources to support each such subsidiary. This
support may be required at times when a bank holding company may not be able to
provide such support. In the event of a loss suffered or anticipated by the
FDIC -- either as a result of default of a banking or thrift subsidiary of
NationsBank or related to FDIC assistance provided to a subsidiary in danger of
default -- the other Banks may be assessed for the FDIC's loss, subject to
certain exceptions.
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THE TRUSTS
Each of the NB Capital Trusts is a statutory business trust formed under
Delaware law pursuant to (i) a separate declaration of trust executed by the
Corporation, as sponsor for such trust (the "Sponsor"), and the NB Trustees (as
defined herein) for such trust and (ii) the filing of a separate certificate of
trust with the Delaware Secretary of State. The declarations of trust with
respect to all of the NB Capital Trusts have identical terms (except with
respect to the name of the NB Capital Trust to which it relates) and each is
referred to as a "Declaration." The term "Declaration," when used with respect
to the Preferred Securities of a particular NB Capital Trust, shall be deemed to
include any Amended and Restated Declaration of Trust with respect to such
Preferred Securities.
Each NB Capital Trust exists for the exclusive purposes of (i) issuing the
Preferred Securities and common securities representing undivided beneficial
interests in the assets of such Trust (the "Common Securities" and, together
with the Preferred Securities, the "Trust Securities"), (ii) investing the gross
proceeds from the sale of the Trust Securities in the purchase of a series of
Junior Subordinated Notes, and (iii) engaging in only those other activities
necessary or incidental thereto. The Common Securities of an NB Capital Trust
will rank pari passu, and payments will be made thereon pro rata, with the
Preferred Securities of such Trust, except that upon an event of default under
the Declaration of such Trust, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Corporation will, directly or indirectly, purchase
and own all of the Common Securities of each NB Capital Trust, which will
represent an aggregate liquidation amount equal to at least 3 percent of the
total capital of such NB Capital Trust. Each NB Capital Trust has a term of
approximately 55 years, but may earlier terminate as provided in its
Declaration. Each NB Capital Trust's business and affairs will be conducted by
its trustees (the "NB Trustees"). The Corporation, as the direct or indirect
holder of the Common Securities of each NB Capital Trust, will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the NB
Trustees of each such NB Capital Trust. The duties and obligations of the NB
Trustees shall be governed by the respective Declarations of such NB Capital
Trusts. One or more of the NB Trustees of each NB Capital Trust will be persons
who are employees or officers of or who are otherwise affiliated with the
Corporation (the "Regular Trustees"), and one NB Trustee of each NB Capital
Trust will be a financial institution that is unaffiliated with the Corporation,
which shall act as property trustee under the related Declaration and as
indenture trustee (the "Property Trustee") for purposes of compliance with the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), pursuant to
the terms set forth in a Prospectus Supplement relating to the offering of the
Trust Securities of each such Trust. The Property Trustee will hold title to the
Junior Subordinated Notes purchased by an NB Capital Trust for the benefit of
the holders of the Trust Securities of such Trust and will have the power to
exercise all rights, power and privileges under the Indenture as the holder of
such Junior Subordinated Notes. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of such Junior
Subordinated Notes for the benefit of the holders of such Trust Securities. The
Property Trustee will make payments of distributions and payments on
liquidation, redemption or otherwise to the holders of such Trust Securities out
of funds from the Property Account. In addition, unless the Property Trustee
maintains a principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, one NB Trustee of each NB Capital
Trust will have its principal place of business or reside in the State of
Delaware (the "Delaware Trustee").
The Declaration of an NB Capital Trust may be modified or amended if
approved by its Regular Trustees (if there are more than two Regular Trustees,
then approved by a majority of its Regular Trustees) and, in certain
circumstances, by its Property Trustee or its Delaware Trustee, provided that,
if any proposed amendment provides for, or such Regular Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Trust Securities of such Trust, whether by
way of amendment to its Declaration or otherwise or (ii) the dissolution,
winding-up or termination of such Trust other than pursuant to the terms of its
Declaration, then the holders of such Trust Securities voting together as a
single 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 at
least a majority in liquidation amount of such Trust Securities affected
thereby; provided further, that, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities of such Trust, then only the affected class will be
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<PAGE>
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 Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration of an NB Capital Trust if such amendment or modification would
(i) cause such Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Property Trustee of such Trust or (iii) cause
such Trust to be deemed an "investment company" required to be registered under
the Investment Company Act of 1940, as amended (the "1940 Act").
The Corporation will pay all fees and expenses related to the NB Capital
Trusts and the offering of Trust Securities. The office of the Delaware Trustee
for each NB Capital Trust in the State of Delaware is The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19711. The principal
place of business of each NB Capital Trust shall be c/o NationsBank Corporation,
Corporate Treasury Division, NationsBank Corporate Center, Charlotte, North
Carolina 28255, telephone (704) 386-5972.
USE OF PROCEEDS
Each NB Capital Trust will use the gross proceeds received from the sale of
its Preferred Securities to purchase Junior Subordinated Notes from NationsBank.
NationsBank intends to add the net proceeds from the sale of the Junior
Subordinated Notes to its general funds, to be used for general corporate
purposes, including the Corporation's working capital needs, the funding of
investments in, or extensions of credit to, its banking and nonbanking
subsidiaries, possible acquisitions of other financial institutions or their
assets or liabilities, possible acquisitions of or investments in other
businesses of a type eligible for bank holding companies and possible reduction
of outstanding indebtedness or repurchase of outstanding equity securities of
the Corporation. Pending such use, the Corporation may temporarily invest the
net proceeds in investment grade securities. The Corporation may, from time to
time, engage in additional capital financings of a character and in amounts to
be determined by the Corporation in light of its needs at such time or times and
in light of prevailing market conditions. If the Corporation elects at the time
of issuance of Junior Subordinated Notes to make different or more specific use
of proceeds other than that set forth herein, such use will be described in the
Prospectus Supplement relating to such Junior Subordinated Notes.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following are the Corporation's consolidated ratios of earnings to
fixed charges and ratios of earnings to combined fixed charges and preferred
stock dividend requirements for the nine months ended September 30, 1996 and for
each of the years in the five-year period ended December 31, 1995:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits...................................... 1.8 1.7 1.9 2.3 2.4 1.1
Including interest on deposits...................................... 1.5 1.4 1.5 1.5 1.4 1.0
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends:
Excluding interest on deposits...................................... 1.8 1.6 1.8 2.3 2.3 1.1
Including interest on deposits...................................... 1.5 1.4 1.5 1.5 1.4 1.0
</TABLE>
For purposes of computing the consolidated ratios, earnings represent net
income of the Corporation plus applicable income taxes and fixed charges, less
capitalized interest and the equity in undistributed earnings of unconsolidated
subsidiaries and associated companies. Fixed charges represent interest expense
(exclusive of interest on deposits in one case and inclusive of such interest in
the other), capitalized interest, amortization of debt discount and appropriate
issuance costs and one-third (the amount deemed to represent an appropriate
interest factor) of net rent expense under all lease commitments. Preferred
stock dividend requirements represent dividend requirements on the outstanding
preferred stock adjusted to reflect the pre-tax earnings that would be required
to cover such dividend requirements.
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PLAN OF DISTRIBUTION
NationsBank may sell the Junior Subordinated Notes and any NB Capital Trust
may sell Preferred Securities in any of, or any combination of, the following
ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters and (iv) through dealers.
Offers to purchase Offered Securities may be solicited directly by
NationsBank or any NB Capital Trust, as the case may be, or by agents designated
by NationsBank or such NB Capital Trust, as the case may be, from time to time.
Any such agent, who may be deemed to be an underwriter as that term is defined
in the Securities Act, involved in the offer or sale of Offered Securities in
respect of which this Prospectus is delivered will be named, and any commissions
payable by NationsBank to such agent will be set forth, in the Prospectus
Supplement relating to such Offered Securities. Unless otherwise indicated in
such Prospectus Supplement, any such agent will be acting in a best efforts
basis for the period of its appointment (ordinarily five business days or less).
Agents, dealers and underwriters may be customers of, engage in transactions
with, or perform services for the Corporation in the ordinary course of
business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities in respect of which this Prospectus is delivered, NationsBank and/or
the NB Capital Trust with respect to which such Offered Securities relate will
execute an underwriting agreement with such underwriters at the time of sale to
them. The names of such underwriters and the terms of the transaction will be
set forth in the Prospectus Supplement relating to such Offered Securities,
which will be used by the underwriters to make releases of such Offered
Securities to the public.
If a dealer is utilized in the sale of Offered Securities in respect of
which this Prospectus is delivered, NationsBank or the NB Capital Trust with
respect to which the Preferred Securities relate, as the case may be, will sell
such Offered Securities to the dealer, as principal. The dealer may then resell
such Offered Securities to the public at varying prices to be determined by such
dealer at the time of resale. The name of the dealer and the terms of the
transaction will be set forth in the Prospectus Supplement relating to such
Offered Securities.
Agents, underwriters and dealers may be entitled under the respective
agreements to indemnification by NationsBank and/or any NB Capital Trust, as the
case may be, against certain liabilities, including liabilities under the
Securities Act.
The place and time of delivery for Offered Securities in respect of which
this Prospectus is delivered will be set forth in the Prospectus Supplement
relating to such Offered Securities.
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<PAGE>
DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES
THE FOLLOWING DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES SETS FORTH
CERTAIN GENERAL TERMS AND PROVISIONS OF THE JUNIOR SUBORDINATED NOTES TO WHICH
ANY PROSPECTUS SUPPLEMENT MAY RELATE. THE PARTICULAR TERMS OF THE JUNIOR
SUBORDINATED NOTES OFFERED BY A PROSPECTUS SUPPLEMENT AND THE EXTENT, IF ANY, TO
WHICH SUCH GENERAL PROVISIONS MAY APPLY TO THE JUNIOR SUBORDINATED NOTES SO
OFFERED WILL BE DESCRIBED IN SUCH PROSPECTUS SUPPLEMENT.
Junior Subordinated Notes may be issued from time to time in one or more
series under an Indenture (the "Indenture") between the Corporation and The Bank
of New York, as Trustee (in such capacity, the "Debt Trustee"). The Indenture is
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus forms a part. The terms of the Junior Subordinated Notes will
include those terms stated in the Indenture and those terms made part of the
Indenture by reference to the Trust Indenture Act. The following summary of
certain provisions of the Indenture does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in its entirety
by reference to, the Indenture and the Trust Indenture Act. Unless otherwise
indicated, capitalized terms shall have the meanings ascribed to them in the
Indenture.
GENERAL
The Junior Subordinated Notes will be unsecured, subordinated obligations
of the Corporation. The Indenture does not limit the aggregate principal amount
of Junior Subordinated Notes which may be issued thereunder and provides that
the Junior Subordinated Notes may be issued from time to time in one or more
series. Each series of Junior Subordinated Notes shall be issued pursuant to an
indenture supplemental to the Indenture or a resolution of the Corporation's
Board of Directors or a special committee appointed thereby (each, a
"Supplemental Indenture"). With respect to any particular series of Junior
Subordinated Notes, the term "Indenture" shall be deemed to include any
Supplemental Indenture(s) with respect to such series of Junior Subordinated
Notes.
In the event Junior Subordinated Notes are issued to an NB Capital Trust or
a trustee of such Trust in connection with the issuance of Trust Securities by
such Trust, such Junior Subordinated Notes subsequently may be distributed pro
rata to the holders of such Trust Securities in connection with the dissolution
of such Trust upon the occurrence of certain events, as will be described in the
Prospectus Supplement relating to such Trust Securities. Only one series of
Junior Subordinated Notes will be issued to an NB Capital Trust or a trustee of
such Trust in connection with the issuance of Trust Securities by such Trust.
Reference is made to the Prospectus Supplement relating to the particular
Junior Subordinated Notes being offered thereby for the following terms: (i) the
designation of such Junior Subordinated Notes; (ii) the aggregate principal
amount of such Junior Subordinated Notes; (iii) the percentage of their
principal amount at which such Junior Subordinated Notes will be issued; (iv)
the date or dates on which such Junior Subordinated Notes will mature and the
right, if any, to extend such date or dates; (v) the rate or rates, if any, per
annum, at which such Junior Subordinated Notes will bear interest, or the method
of determination of such rate or rates; (vi) the date or dates from which such
interest shall accrue, the interest payment dates on which such interest will be
payable or the manner of determination of such interest payment dates and the
record dates for the determination of holders to whom interest is payable on any
such interest payment dates; (vii) the right to extend the interest payment
periods and the duration of such extension; (viii) provisions for a sinking
purchase or other analogous fund, if any; (ix) the period or periods, if any,
within which, the price or prices of which, and the terms and conditions upon
which such Junior Subordinated Notes may be redeemed, in whole or in part, at
the option of the Corporation or the holder; (x) the form of such Junior
Subordinated Notes; and (xi) any other specific terms of the Junior Subordinated
Notes. Principal, premium, if any, and any interest will be payable, and the
Junior Subordinated Notes will be transferable, at the corporate trust office of
the Debt Trustee in New York, New York, provided that payment of interest, if
any, may be made at the option of the Corporation by check mailed to the address
of the person entitled thereto as it appears in the Security Register.
The ability of NationsBank to make payments of principal of and premium, if
any, and any interest on the Junior Subordinated Notes may be affected by the
ability of the Banks to pay dividends. The ability of the Banks, as well as of
the Corporation, to pay dividends in the future currently is, and could be
further, influenced by bank regulatory requirements and capital guidelines. See
"NATIONSBANK CORPORATION -- Supervision and Regulation."
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<PAGE>
The covenants contained in the Indenture would not necessarily afford
protection to holders of the Junior Subordinated Notes in the event of a decline
in credit quality resulting from takeovers, recapitalization or similar
restructuring.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the Prospectus Supplement relating to a
series of Junior Subordinated Notes, the Junior Subordinated Notes will be
issued in fully registered form without coupons and in denominations of $1,000
and multiples of $1,000. No service charge will be made for any transfer or
exchange of the Junior Subordinated Notes, but the Corporation or the Debt
Trustee may require payment of a sum sufficient to cover any tax or other
government charge payable in connection therewith.
Unless otherwise provided in the Prospectus Supplement relating to a series
of Junior Subordinated Notes, principal, premium, if any, or any interest will
be payable and the Junior Subordinated Notes may be surrendered for payment or
transferred at the offices of the Debt Trustee, as paying and authenticating
agent, provided that payment of interest on registered securities that are not
issued to an NB Capital Trust may be made at the option of the Corporation by
check mailed to the address of the person entitled thereto as it appears in the
Security Register.
BOOK-ENTRY JUNIOR SUBORDINATED NOTES
The Junior Subordinated Notes of a series may be issued in whole or in part
in the form of one or more Global Securities that will be deposited with, or on
behalf of, a depositary (the "Depositary"), or its nominee, identified in the
Prospectus Supplement relating to such Junior Subordinated Notes. In such case,
one or more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
outstanding Junior Subordinated Notes of the series to be represented by such
Global Security or Securities. Unless and until it is exchanged in whole or in
part for Junior Subordinated Notes in definitive registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Depositary for such Global Security to a nominee for such Depositary and except
in the circumstances described in the Prospectus Supplement relating to such
Junior Subordinated Notes.
The specific terms of the depositary arrangement with respect to any
portion of a series of Junior Subordinated Notes to be represented by a Global
Security and a description of the Depositary will be provided in the Prospectus
Supplement relating to such Junior Subordinated Notes.
SUBORDINATION
The Junior Subordinated Notes of a series will be subordinated and junior
in right of payment to other indebtedness of the Corporation to the extent set
forth in the Prospectus Supplement relating to such Junior Subordinated Notes.
CERTAIN COVENANTS OF THE CORPORATION
If Junior Subordinated Notes of a series are issued to an NB Capital Trust
or a trustee of such Trust in connection with the issuance of Trust Securities
by such Trust and (i) there shall have occurred and be continuing any event that
would constitute an Event of Default (as defined herein) or any nonpayment of
principal, premium, if any, or interest, when due on such Junior Subordinated
Notes (a "Note Payment Failure"), or (ii) the Corporation shall be in default
with respect to its payment of any obligations under the related Preferred
Securities Guarantee or Common Securities Guarantee (as defined herein), or
(iii) if applicable, the Corporation shall have given notice of its election to
defer payments of interest on such Junior Subordinated Notes by extending the
interest payment period as provided in the Indenture and described in the
Prospectus Supplement relating to such Junior Subordinated Notes and such
period, or any extension thereof, shall be continuing, then (a) the Corporation
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase 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 it of its obligations under
any employee benefit plans, (ii) as a result of a reclassification of its
capital stock or the exchange or conversion of one class or series of its
capital stock for another class or series of its capital stock or
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<PAGE>
(iii) the purchase of fractional interests in shares of its capital stock
pursuant to an acquisition or the conversion or exchange provisions of its
capital stock or the security being converted or exchanged (collectively,
"Permitted Purchases/Exchanges")) or make any guarantee payments with respect to
the foregoing, and (b) the Corporation 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 Corporation which rank pari
passu with or junior to such Junior Subordinated Notes.
If Junior Subordinated Notes of a series are issued to an NB Capital Trust
or a trustee of such Trust in connection with the issuance of Trust Securities
by such Trust, for so long as such Trust Securities remain outstanding, the
Corporation will (i) directly or indirectly maintain 100 percent ownership of
the Common Securities of such Trust (provided, however, that any permitted
successor of the Corporation under the Indenture may succeed to the
Corporation's ownership of such Common Securities); (ii) use its reasonable
efforts to cause such Trust (a) to remain a statutory business trust, except in
connection with the distribution of Junior Subordinated Notes to the holders of
such Trust Securities in liquidation of such Trust, the redemption of all of
such Trust Securities, or certain mergers, consolidations or amalgamations, each
as permitted by the Declaration of such Trust, and (b) to otherwise continue not
to be classified as an association taxable as a corporation or partnership for
United States federal income tax purposes; and (iii) use its reasonable efforts
to cause each holder of such Trust Securities to be treated as owning an
undivided beneficial interest in such Junior Subordinated Notes.
LIMITATION ON MERGERS AND SALES OF ASSETS
The Corporation shall not consolidate with, or merge into, any corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person unless (a) the successor entity shall be a corporation organized
under the laws of the United States or any State or the District of Columbia and
shall expressly assume the obligations of the Corporation under the Indenture
and the respective Preferred Securities Guarantees and (b) after giving effect
thereto, no Default shall have occurred and be continuing under the Indenture.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing constitutes an "Event of Default"
with respect to a series of Junior Subordinated Notes:
(a) certain events involving the bankruptcy, insolvency or reorganization
of the Corporation; or
(b) if Junior Subordinated Notes of such series are issued to an NB Capital
Trust or a trustee of such Trust in connection with the issuance of Trust
Securities by such Trust, the voluntary or involuntary dissolution, winding-up
or termination of such Trust, except in connection with the distribution of such
Junior Subordinated Notes to the holders of such Trust Securities in liquidation
of such Trust, the redemption of all of the Trust Securities of such Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such Trust.
The Indenture provides that, if an Event of Default on a series of Junior
Subordinated Notes shall have occurred and be continuing, either the Debt
Trustee or the holders of 25 percent in principal amount of such Junior
Subordinated Notes then outstanding may declare the principal (or, if such
Junior Subordinated Notes were issued with original issue discount, such portion
of the principal amount as may be specified in the terms of such series) of all
such Junior Subordinated Notes and any interest accrued thereon to be due and
payable immediately. The holders of a majority in aggregate outstanding
principal amount of such series of Junior Subordinated Notes may annul such
declaration in certain circumstances and waive such default. Prior to any such
declaration of acceleration, the holders of a majority in aggregate principal
amount of a series of Junior Subordinated Notes generally may waive on behalf of
the holders of all such Junior Subordinated Notes any default or Event of
Default other than a default (i) in the payment of principal of, premium, if
any, or interest on such Junior Subordinated Notes, (ii) in respect of covenants
that cannot be modified or amended without the consent of each holder of such
Junior Subordinated Notes, or (iii) in respect of certain other covenants of the
Corporation; PROVIDED, HOWEVER, that if such Junior Subordinated Notes are
issued to an NB Capital Trust or a trustee of such Trust, such waiver or
modification to such waiver shall not be effective until a majority in
liquidation amount of the Trust Securities of such Trust have consented to such
waiver or modification. See " -- Certain Covenants of the Corporation" and
" -- Modification of the Indenture."
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The holders of a majority in principal amount of the Junior Subordinated
Notes of any and all series affected and then outstanding generally shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Debt Trustee under the Indenture, provided that the
holders of such Junior Subordinated Notes shall have offered to the Debt Trustee
reasonable indemnity against expenses and liabilities. Notwithstanding the
foregoing, subject to any subordination provisions, as set forth in the
Prospectus Supplement relating to a series of Junior Subordinated Notes, the
right of any holder of Junior Subordinated Notes to receive payment of the
principal of and premium, if any, and interest on such Junior Subordinated Notes
on or after the due dates therefor, as the same may be extended in accordance
with the terms of such Junior Subordinated Notes, or to institute suit for the
enforcement of any such payment provisions, shall not be impaired or affected
without the consent of such holder.
If Junior Subordinated Notes of a series are issued to an NB Capital Trust,
the same rights with respect to such Junior Subordinated Notes will extend to
the holders of the Preferred Securities issued by such Trust. The Indenture
requires the annual filing by the Corporation with the Debt Trustee of a
certificate as to the absence of certain defaults under the Indenture.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Corporation and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Notes of all series affected by such
modification at the time outstanding, to modify the Indenture or enter into any
supplemental indenture or modify the rights of the holders of such Junior
Subordinated Notes; PROVIDED, HOWEVER, that no such modification shall (i)
extend the fixed maturity of any Junior Subordinated Note, or reduce the
principal amount thereof (including in the case of a discounted Junior
Subordinated Note the amount payable thereon in the event of acceleration or the
amount provable in bankruptcy) or any redemption premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or make the principal
of, or interest or premium on, such Junior Subordinated Notes payable in any
coin or currency other than that provided in such Junior Subordinated Notes, or
impair or affect the right of any holder of such Junior Subordinated Notes to
institute suit for the payment thereof or the right of prepayment, if any, at
the option of the holder, without the consent of the holder of each such Junior
Subordinated Note so affected, or (ii) reduce the aforesaid percentage of Junior
Subordinated Notes the consent of the holders of which is required for any such
modification without the consent of the holders of each such Junior Subordinated
Note so affected. The Indenture further provides that if Junior Subordinated
Notes of a series are held by an NB Capital Trust or a trustee of such Trust, no
modification of the Indenture shall be effective until the holders of a majority
in liquidation preference of the Trust Securities of such NB Capital Trust shall
have consented to such modification and that, whenever the consent of the
holders of all outstanding Junior Subordinated Notes is required with respect to
a modification of the Indenture, such modification shall not be effective until
each holder of such Trust Securities shall have consented to such modification.
As a result of these pass-through voting rights with respect to modifications to
the Indenture, no modification thereto shall be effective until the holders of a
majority in liquidation preference of the Trust Securities of an NB Capital
Trust consent to such modification and no modification described in clauses (i)
or (ii) shall be effective without the consent of each holder of Preferred
Securities and each holder of Common Securities of such NB Capital Trust.
DEFEASANCE AND DISCHARGE
The Indenture provides that, if no Event of Default generally shall have
occured and be continuing, the Corporation (a) will be discharged from any and
all obligations in respect of the Junior Subordinated Notes of a series (except
for certain obligations to register the transfer or exchange of Junior
Subordinated Notes, replace stolen, lost or mutilated Junior Subordinated Notes,
maintain paying agencies and hold moneys for payment in trust) or (b) need not
comply with certain restrictive covenants of the Indenture (including those
described under " -- Certain Covenants of the Corporation"), in each case if the
Corporation, at its option, deposits, in trust with the Debt Trustee or any
Defeasance Agent, money or U.S. Government Obligations which through the payment
of interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient to pay all the principal of, and premium,
if any, and any interest on, the Junior Subordinated Notes of such series on the
dates such payments are due in accordance with the terms of such Junior
Subordinated Notes. To exercise any such option, the Corporation is required to
deliver to the Debt Trustee and the
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Defeasance Agent, if any, an opinion of counsel to the effect that (i) the
deposit and related defeasance would not cause the holders of the Junior
Subordinated Notes of such series to recognize income, gain or loss for United
States federal income tax purposes, with such opinion to be accompanied by a
private letter ruling to that effect received by the Corporation from the United
States Internal Revenue Service or a revenue ruling pertaining to a comparable
form of transaction to that effect published by the United States Internal
Revenue Service, and (ii) if listed on any national securities exchange, such
Junior Subordinated Notes would not be delisted from such exchange as a result
of the exercise of such option.
GOVERNING LAW
The Indenture and the Junior Subordinated Notes will be governed by, and
construed in accordance with, the internal laws of the State of New York.
THE DEBT TRUSTEE
The Corporation and certain of its affiliates have from time to time
maintained deposit accounts and conducted other banking transactions with the
Debt Trustee and its affiliated entities in the ordinary course of business. The
Debt Trustee also serves as trustee for certain series of the Corporation's
outstanding indebtedness under other indentures.
DESCRIPTION OF THE PREFERRED SECURITIES
THE FOLLOWING DESCRIPTION OF THE PREFERRED SECURITIES SETS FORTH CERTAIN
GENERAL TERMS AND PROVISIONS OF THE PREFERRED SECURITIES OF ANY OF THE NB
CAPITAL TRUSTS TO WHICH ANY PROSPECTUS SUPPLEMENT MAY RELATE. THE PARTICULAR
TERMS OF THE PREFERRED SECURITIES OF AN NB CAPITAL TRUST OFFERED BY A PROSPECTUS
SUPPLEMENT AND THE EXTENT, IF ANY, TO WHICH SUCH GENERAL PROVISIONS MAY APPLY TO
THE PREFERRED SECURITIES SO OFFERED WILL BE DESCRIBED IN SUCH PROSPECTUS
SUPPLEMENT.
GENERAL
The Declaration of each NB Capital Trust authorizes the Regular Trustees of
such Trust to issue on behalf of such Trust one series of Preferred Securities.
Such NB Capital Trust may issue from time to time such series of Preferred
Securities in amounts, at prices and on terms described in the Prospectus
Supplement relating thereto. Each Declaration will be qualified as an indenture
under the Trust Indenture Act. The Bank of New York will act as indenture
trustee under the respective Declarations for the purposes of the Trust
Indenture Act. The Preferred Securities of an NB Capital Trust will have such
terms, including distributions, redemption, voting, liquidation rights and such
other preferred, deferred or other special rights or such restrictions, as shall
be set forth in its Declaration or made part of such Declaration by the Trust
Indenture Act and which will mirror the terms of the Junior Subordinated Notes
to be purchased and held by such NB Capital Trust and described in the
Prospectus Supplement relating thereto. As the terms regarding redemption of the
Preferred Securities of an NB Capital Trust will mirror the redemption terms of
the Junior Subordinated Notes to be purchased and held by such NB Capital Trust,
if any such Junior Subordinated Notes are redeemed, an equivalent portion of the
related Preferred Securities will be redeemed on a pro rata basis. Reference is
made to the Prospectus Supplement relating to the Preferred Securities of an NB
Capital Trust for specific terms, including (i) the distinctive designation of
such Preferred Securities; (ii) the number of Preferred Securities issued by
such NB Capital Trust; (iii) the annual distribution rate (or method of
determining such rate) for Preferred Securities issued by such NB Capital Trust
and the date or dates upon which such distributions shall be payable; (iv)
whether distributions on Preferred Securities issued by such NB Capital Trust
shall be cumulative, and, in the case of Preferred Securities having cumulative
distribution rights, the date or dates or method of determining the date or
dates from which distributions on Preferred Securities issued by such Trust
shall be cumulative; (v) the amount or amounts which shall be paid out of the
assets of such NB Capital Trust to the holders of its Preferred Securities upon
voluntary or involuntary dissolution, winding-up or termination of such Trust;
(vi) the obligation, if any, of such NB Capital Trust to purchase or redeem its
Preferred Securities and the price or prices at which, the period or periods
within which, and the terms and conditions upon which, such Preferred Securities
shall be purchased or redeemed, in whole or in part, pursuant to such
obligation; (vii) the voting rights, if any, of Preferred Securities issued by
such NB Capital Trust in addition to those required by law, including the number
of votes per Preferred Security and any requirement for the approval by the
holders of such Preferred Securities, or of Preferred Securities issued by one
or more NB Capital Trusts, or of both, as a condition to specified action or
amendments to the Declaration of such NB Capital Trust; (viii) the terms and
conditions, if any, upon which the Junior Subordinated Notes to be purchased and
held by such NB
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Capital Trust may be distributed to holders of its Preferred Securities; (ix) if
applicable, any securities exchange upon which the Preferred Securities of such
NB Capital Trust shall be listed; and (x) any other relevant rights,
preferences, privileges, limitations or restrictions of Preferred Securities of
such NB Capital Trust not inconsistent with the Declaration of such Trust or
with applicable law. Such Prospectus Supplement also will contain specific
information regarding any special redemption provisions of the Preferred
Securities offered thereby. The Indenture provides pass-through voting rights to
the holders of the Trust Securities of each NB Capital Trust, including the
Preferred Securities of any such Trust, with respect to modifications to the
Indenture. As a result, the holders of Preferred Securities of an NB Capital
Trust have a right to vote (in some cases as a class with holders of Common
Securities of such Trust) on changes to the term of the Junior Subordinated
Notes held by such Trust. See "DESCRIPTION OF THE JUNIOR SUBORDINATED
NOTES -- Modification of the Indenture."
The Preferred Securities Guarantee relating to the Preferred Securities of
an NB Capital Trust, when taken together with the Corporation's obligations
under the Junior Subordinated Notes held by such Trust, the Indenture and the
Declaration of such Trust, including the Corporation's obligations to pay costs,
expenses, debts and liabilities of such Trust (other than with respect to the
Trust Securities of such Trust), will provide a full and unconditional guarantee
on a subordinated basis by the Corporation of payments due on the Preferred
Securities of such Trust. See "DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEES."
The Declaration of each NB Capital Trust authorizes its Regular Trustees to
issue on behalf of such Trust one series of Common Securities having such terms,
including distribution, redemption, voting or liquidation rights or other
restrictions, as shall be set forth therein. Except for the voting rights noted
below, the terms of the Common Securities issued by an NB Capital Trust will be
substantially identical to the terms of the Preferred Securities issued by such
Trust, and such Common Securities will rank pari passu, and payments will be
made thereon pro rata, with such Preferred Securities except that, upon an Event
of Default under the Declaration of such Trust, the rights of the holders of
such Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of such Preferred Securities. Except in certain limited circumstances,
the Common Securities of an NB Capital Trust will also carry the right to vote
to appoint, remove or replace any of the NB Trustees of such Trust. All of the
Common Securities of each NB Capital Trust will be directly or indirectly owned
by the Corporation.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an Event of Default under the Declaration of an NB Capital Trust occurs
and is continuing, then the holders of Preferred Securities of such Trust would
rely on the enforcement by the Trust's Property Trustee of its rights, as a
holder of the applicable series of Junior Subordinated Notes held by such Trust,
against the Corporation. In addition, the holders of a majority in liquidation
amount of the Preferred Securities of such Trust will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to such Property Trustee or to direct the exercise of any trust or power
conferred upon such Property Trustee under the Declaration of such Trust,
including the right to direct such Property Trustee to exercise the remedies
available to it as a holder of such Junior Subordinated Notes. If such Property
Trustee fails to enforce its rights under the applicable series of Junior
Subordinated Notes, a holder of Preferred Securities of such Trust may, to the
extent permitted by applicable law, institute a legal proceeding directly
against the Corporation to enforce such Property Trustee's rights under the
applicable series of Junior Subordinated Notes without first instituting any
legal proceeding against such Property Trustee or any other person or entity.
Notwithstanding the foregoing, if NationsBank fails to pay interest or
principal on a series of Junior Subordinated Notes on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date) and such Note Payment Failure is continuing, a holder of Preferred
Securities of the NB Capital Trust holding such series of Junior Subordinated
Notes may directly institute a proceeding for enforcement of payment to such
holder of the principal of or interest on such series of Junior Subordinated
Notes having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Trust (a "Direct Action") after the respective due
date specified in such series of Junior Subordinated Notes. In connection with
such Direct Action, the Corporation will be subrogated to the rights of such
holder of Preferred Securities under the Declaration of such Trust to the extent
of any payment made by the Corporation to such holder of Preferred Securities in
such Direct Action.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Preferred Securities issued by an NB Capital Trust. Such Preferred
Securities will be issued only as fully-registered securities registered in the
name of Cede & Co. (DTC's nominee). One or more fully-registered global
Preferred Securities
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certificates, representing the total aggregate number of such Preferred
Securities, will be issued to and deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants in DTC
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of its
Participants and by the New York Stock Exchange, the American Stock Exchange,
Inc., and the National Association of Securities Dealers, Inc. Access to the DTC
system is also available to others, such as securities brokers and dealers,
banks and trust companies that clear transactions through or maintain a direct
or indirect custodial relationship with a Participant either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Participants, which will receive a credit for such Preferred Securities
on DTC's records. The ownership interest of each actual purchaser of each
Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Participants' and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, but Beneficial Owners
are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the
Participants or Indirect Participants through which the Beneficial Owners
purchased Preferred Securities. Transfers of ownership interests in Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Preferred Securities,
except in the event that use of the book-entry system for Preferred Securities
is discontinued.
DTC has no knowledge of the actual Beneficial Owners of any such Preferred
Securities. DTC's records reflect only the identity of the Participants to whose
accounts such Preferred Securities are credited, which may or may not be the
Beneficial Owners. The Participants and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
global Preferred Security, DTC or such nominee, as the case may be, will be
considered the sole owner or holder of the Preferred Securities represented
thereby for all purposes under the applicable Declaration and the Preferred
Securities. No beneficial owner of an interest in a global Preferred Security
will be able to transfer that interest except in accordance with DTC's
applicable procedures, in addition to those provided for under the applicable
Declaration.
DTC has advised the Corporation that it will take any action permitted to
be taken by a holder of Preferred Securities (including presentation of
Preferred Securities for exchange as described below) only at the direction of
one or more Participants to whose account the interests in global Preferred
Securities are credited and only in respect of such portion of the aggregate
liquidation amount of Preferred Securities as to which such Participant or
Participants has or have given such direction. However, if there is an Event of
Default under any Preferred Securities, DTC will exchange the global Preferred
Securities representing such Preferred Securities for certificated securities,
which it will distribute to its Participants.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants, and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Redemption notices, if applicable, in respect of any Preferred Securities
held in book-entry form will be sent to Cede & Co. If less than all of such
Preferred Securities are being redeemed, DTC will determine the amount of the
interest of each Participant to be redeemed in accordance with its procedures.
Although voting with respect to any of the Preferred Securities is limited,
in those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to such Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the applicable NB Capital Trust
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Participants to whose accounts such
Preferred Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
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Distributions on Preferred Securities held in book-entry form will be made
to DTC in immediately available funds. DTC's practice is to credit Participants'
accounts on the relevant payment date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payments on such payment date. Payments by Participants and Indirect
Participants to Beneficial Owners will be governed by standing instructions and
customary practices and will be the responsibility of such Participants and
Indirect Participants and not of DTC, the applicable NB Capital Trust or the
Corporation, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to DTC is the responsibility
of the applicable NB Capital Trust, disbursement of such payments to
Participants is the responsibility of DTC, and disbursement of such payments to
the Beneficial Owners is the responsibility of Participants and Indirect
Participants.
Except as provided herein, a Beneficial Owner of an interest in a global
Preferred Security will not be entitled to receive physical delivery of the
Preferred Securities represented thereby. Accordingly, each Beneficial Owner
must rely on the procedures of DTC to exercise any rights under such Preferred
Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in global Preferred Securities among Participants of DTC,
DTC is under no obligation to perform or continue to perform such procedures,
and such procedures may be discontinued at any time. Neither the Corporation,
any of the NB Capital Trusts nor the trustees of any such Trust will have any
responsibility for the performance by DTC or its Participants or Indirect
Participants under the rules and procedures governing DTC. DTC may discontinue
providing its services as securities depositary with respect to any of the
Preferred Securities at any time by giving notice to the applicable NB Capital
Trust. Under such circumstances, in the event that a successor securities
depositary is not obtained, Preferred Security certificates are required to be
printed and delivered. Additionally, the applicable NB Capital Trust (with the
consent of the Corporation) may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor depositary). In that event,
certificates for such Preferred Securities will be printed and delivered. In
each of the above circumstances, the Corporation will appoint a paying agent
with respect to such Preferred Securities.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in Preferred Securities
represented by a global Preferred Security.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by NationsBank for
the benefit of the holders from time to time of Preferred Securities. Each
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Bank of New York will act as indenture trustee under each
Preferred Securities Guarantee for purposes of the Trust Indenture Act (in such
capacity, the "Preferred Guarantee Trustee"). The terms of each Preferred
Securities Guarantee will be those set forth in such Preferred Securities
Guarantee and those made part of such Preferred Securities Guarantee by the
Trust Indenture Act. The following summary of the material terms of the
Preferred Securities Guarantees does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the form of Preferred Securities Guarantee, which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, and
the Trust Indenture Act. Each Preferred Securities Guarantee will be held by the
Preferred Guarantee Trustee for the benefit of the holders of the Preferred
Securities of the applicable NB Capital Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Corporation will, to
the extent the applicable NB Capital Trust shall have funds available therefor,
agree to pay in full, to the holders of the Preferred Securities issued by such
Trust, the Guarantee Payments (as defined herein) (except to the extent paid by
such Trust), as and when due, regardless of any defense, right of set-off or
counterclaim which such Trust may have or assert. The following payments (the
"Guarantee Payments") with respect to Preferred Securities issued by an NB
Capital Trust, to the extent not paid by such Trust will be subject to the
Preferred Securities Guarantee thereon (without duplication): (i) any accrued
and unpaid distributions which are required to be paid on such Preferred
Securities, to the extent such Trust shall have funds available therefor; (ii)
the redemption price, including all accrued and unpaid distributions (the
"Redemption Price") with respect to any Preferred Securities called for
redemption by such Trust to the extent such Trust shall have funds available
therefor and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of such Trust (other than in connection with the distribution of
Junior Subordinated Notes held by such Trust to the holders of Preferred
Securities of such Trust or the redemption of all of such Preferred Securities),
the lesser of (a) the aggregate of
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the liquidation amount and all accrued and unpaid distributions on such
Preferred Securities to the date of payment, to the extent such Trust shall have
funds available therefor and (b) the amount of assets of such Trust remaining
available for distribution to holders of such Preferred Securities in
liquidation of such NB Capital Trust. The redemption price and liquidation
amount of any Preferred Securities will be fixed at the time such Preferred
Securities are issued and will be described in the Prospectus Supplement
relating to such Preferred Securities. The Corporation's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Corporation to the holders of Preferred Securities or by causing the
applicable NB Capital Trust to pay such amounts to such holders.
A Preferred Securities Guarantee will not apply to any payment of
distributions except to the extent the related NB Capital Trust shall have funds
available therefor. If the Corporation does not make interest payments on the
Junior Subordinated Notes held by an NB Capital Trust, such Trust will not pay
distributions on its Preferred Securities and will not have funds available
therefor. See "DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES -- Certain Covenants
of the Corporation." The Preferred Securities Guarantee relating to the
Preferred Securities of an NB Capital Trust, when taken together with the
Corporation's obligations under the Junior Subordinated Notes held by such
Trust, the Indenture and the Declaration of such Trust, including the
Corporation's obligations to pay costs, expenses, debts and liabilities of such
Trust (other than with respect to the Trust Securities of such Trust), will
provide a full and unconditional guarantee on a subordinated basis by the
Corporation of payments due on such Preferred Securities.
The Corporation has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the NB Capital Trusts with respect
to each Trust's Common Securities (collectively, the "Common Securities
Guarantees") to the same extent as the Preferred Securities Guarantees, except
that upon an Event of Default under the Indenture, holders of Preferred
Securities shall have priority over holders of Common Securities with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE CORPORATION
In each Preferred Securities Guarantee, the Corporation will covenant that,
so long as any Preferred Securities issued by the applicable NB Capital Trust
remain outstanding, if there shall have occurred any event that would constitute
an Event of Default under such Preferred Securities Guarantee or the Declaration
of such Trust, then (a) the Corporation shall not declare or pay any dividend
on, make any distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its capital stock (other than
Permitted Purchases/Exchanges) or make any guarantee payments with respect to
the foregoing, (b) the Corporation shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its preferred stock (other than
Permitted Purchases/Exchanges) except that the Corporation may meet the same
proportion of its payment obligations with respect to its preferred stock that
it meets under such Preferred Securities Guarantee and (c) the Corporation 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
Corporation which rank pari passu with or junior to the Junior Subordinated
Notes held by such Trust.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities of the applicable NB Capital Trust. The manner
of obtaining any such approval of holders of such Preferred Securities will be
set forth in the Prospectus Supplement relating to such Preferred Securities.
All guarantees and agreements contained in a Preferred Securities Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Corporation and shall inure to the benefit of the holders of the Preferred
Securities of the applicable NB Capital Trust then outstanding.
TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities of the applicable NB Capital Trust (a) upon full payment of the
Redemption Price of all such Preferred Securities, (b) upon distribution of the
Junior Subordinated Notes held by such Trust to the holders of such Preferred
Securities or (c) upon full payment of the amounts payable in accordance with
the Declaration of such Trust upon liquidation of such Trust. Each Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of Preferred Securities of the applicable
NB Capital Trust must restore payment of any sums paid under such Preferred
Securities or such Preferred Securities Guarantee.
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EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Corporation to perform any of its payment or other
obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
relating to such Preferred Securities Guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities Guarantee. If the Preferred
Guarantee Trustee fails to enforce such Preferred Securities Guarantee, any
holder of Preferred Securities to which such Preferred Securities Guarantee
relates may institute a legal proceeding directly against the Corporation to
enforce the Preferred Guarantee Trustee's rights under such Preferred Securities
Guarantee, without first instituting a legal proceeding against the applicable
NB Capital Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Corporation has failed to make a guarantee
payment, a holder of Preferred Securities may directly institute a proceeding
against the Corporation for enforcement of the Preferred Securities Guarantee
for such payment. The Corporation waives any right or remedy to require that any
action be brought first against such NB Capital Trust or any other person or
entity before proceeding directly against the Corporation.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Preferred Securities Guarantees will constitute unsecured obligations
of the Corporation and will rank (i) subordinate and junior in right of payment
to all other liabilities, including contingent liabilities, of the Corporation,
(ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Corporation and with any guarantee now or hereafter
entered into by the Corporation in respect of any preferred or preference stock
of any affiliate of the Corporation, and (iii) senior to the Corporation's
common stock. The terms of the Preferred Securities provide that each holder of
Preferred Securities issued by the applicable NB Capital Trust by acceptance
thereof agrees to the subordination provisions and other terms of the Preferred
Securities Guarantee relating thereto.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby.
The Corporation and certain of its affiliates have from time to time
maintained deposit accounts and conducted other banking transactions with the
Preferred Guarantee Trustee and its afifiliated entities in the ordinary course
of business. The Preferred Guarantee Trustee also serves as trustee for certain
series of the Corporation's outstanding indebtedness under other indentures.
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with, the internal laws of the State of New York.
20
<PAGE>
EFFECT OF OBLIGATIONS UNDER THE
JUNIOR SUBORDINATED NOTES AND THE GUARANTEE
As set forth in each Declaration, the sole purpose of each of the NB
Capital Trusts is to issue the Trust Securities evidencing undivided beneficial
interests in the assets of such NB Capital Trust and to invest the proceeds from
such issuance and sale in Junior Subordinated Notes.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Notes of a series held by an NB Capital Trust, such payments
will be sufficient to cover distributions and payments due on the Trust
Securities of such Trust because of the following factors: (i) the aggregate
principal amount of such Junior Subordinated Notes will be equal to the sum of
the aggregate stated liquidation amount of such Trust Securities; (ii) the
interest rate and the interest and other payment dates on such Junior
Subordinated Notes will match the distribution rate and distribution and other
payment dates for the Preferred Securities of such Trust; (iii) NationsBank
shall pay all, and such Trust shall not be obligated directly or indirectly to
pay any, costs, expenses, debts and obligations of such Trust (other than with
respect to its Trust Securities); and (iv) each Declaration further provides
that the NB Trustees of the respective NB Capital Trust shall not take or cause
or permit such Trust to, among other things, engage in any activity that is not
consistent with the purposes of such Trust.
Pursuant to the Preferred Securities Guarantee, payments of distributions
and other payments due on the Preferred Securities are guaranteed by NationsBank
to the extent the applicable NB Capital Trust has funds available to make such
distributions or payments. If NationsBank does not make interest payments on the
Junior Subordinated Notes held by an NB Capital Trust, such Trust will not have
sufficient funds to pay distributions on its Preferred Securities and the
related Preferred Securities Guarantee will not apply, because the Preferred
Securities Guarantee covers the payment of distributions and other payments on
the Preferred Securities only if and to the extent that NationsBank has made a
payment of interest or principal on the Junior Subordinated Notes held by such
Trust as its sole asset. However, the Preferred Securities Guarantee of an NB
Capital Trust, when taken together with the Corporation's obligations under the
Junior Subordinated Notes held by such Trust, the Indenture and the Declaration
of such Trust, including the Corporation's obligations to pay costs, expenses,
debts and liabilities of such Trust (other than with respect to the Trust
Securities of such Trust), provide a full and unconditional guarantee on a
subordinated basis by the Corporation of payment due on such Preferred
Securities.
If NationsBank fails to make interest or other payments on the Junior
Subordinated Notes held by an NB Capital Trust when due (taking account of any
Extension Period), the Declaration of such Trust provides a mechanism whereby
the holders of the Preferred Securities affected thereby, using the procedures
described in the Prospectus Supplement relating to such Preferred Securities,
may direct the Property Trustee to enforce its rights under such Junior
Subordinated Notes. If the Property Trustee fails to enforce its rights under
such Junior Subordinated Notes, a holder of Preferred Securities of such NB
Capital Trust may, to the extent permitted by applicable law, institute a legal
proceeding against NationsBank to enforce the Property Trustee's rights under
such Junior Subordinated Notes without first instituting any legal proceeding
against the Property Trustee or any other person or entity. Notwithstanding the
foregoing, if a Note Payment Failure has occurred and is continuing, a holder of
Preferred Securities of an NB Capital Trust may institute a Direct Action for
payment after the respective due date specified in the Junior Subordinated Notes
held by such Trust. In connection with such Direct Action, NationsBank will be
subrogated to the rights of such holder of Preferred Securities under the
Declaration of such NB Capital Trust to the extent of any payment made by
NationsBank to such holder of Preferred Securities in such Direct Action.
NationsBank, under each Preferred Securities Guarantee, acknowledges that the
Preferred Guarantee Trustee shall enforce the Preferred Securities Guarantee on
behalf of the holders of the Preferred Securities to which such Preferred
Securities Guarantee relates. If NationsBank fails to make payments under a
Preferred Securities Guarantee, the Preferred Securities Guarantee provides a
mechanism whereby the holders of the Preferred Securities to which such
Preferred Securities Guarantee relates may direct the Preferred Guarantee
Trustee to enforce its rights thereunder. Any holder of such Preferred
Securities may institute a legal proceeding directly against NationsBank to
enforce the Preferred Guarantee Trustee's rights under the Preferred Securities
Guarantee without first instituting a legal proceeding against the applicable NB
Capital Trust, the Preferred Guarantee Trustee or any other person or entity.
NationsBank and each of the NB Capital Trusts believe that the above
mechanisms and obligations, taken together, provide a full and unconditional
guarantee by NationsBank of payments due on the Preferred Securities. See
"DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES -- General."
21
<PAGE>
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the NB Capital Trusts by Richards,
Layton & Finger, special Delaware counsel to the NB Preferred Trusts. The
validity of the Junior Subordinated Notes and the Preferred Securities
Guarantees and certain matters relating thereto will be passed upon for
NationsBank by Smith Helms Mulliss & Moore, L.L.P. and for the underwriters by
Stroock & Stroock & Lavan. Certain United States federal income taxation matters
will be passed upon for NationsBank and the NB Capital Trusts by Stroock &
Stroock & Lavan, special tax counsel to NationsBank and the NB Capital Trusts.
Smith Helms Mulliss & Moore, L.L.P. and Stroock & Stroock & Lavan will rely on
the opinion of Richards, Layton & Finger as to matters of Delaware law.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1995, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The supplemental consolidated financial statements of Boatmen's Bancshares,
Inc. at December 31, 1995 and 1994, and for the three years ended December 31,
1995, incorporated herein by reference from the Corporation's Current Report on
Form 8-K filed on September 6, 1996, have been audited by Ernst & Young LLP,
independent auditors, as set forth in its report thereon incorporated herein in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
22
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NATIONSBANK
CORPORATION, ANY OF THE NB CAPITAL TRUSTS OR ANY UNDERWRITERS OR AGENTS. NEITHER
THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR
ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF NATIONSBANK
CORPORATION OR THE NB CAPITAL TRUSTS SINCE THE DATE HEREOF. NEITHER THIS
PROSPECTUS NOR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Incorporation of Certain Documents by Reference....... 3
Available Information................................. 3
NationsBank Corporation............................... 4
The Trusts............................................ 8
Use of Proceeds....................................... 9
Ratios of Earnings to Fixed Charges and to Combined
Fixed Charges and Preferred Stock Dividends......... 9
Plan of Distribution.................................. 10
Description of the Junior Subordinated Notes.......... 11
Description of the Preferred Securities............... 15
Description of the Preferred Securities Guarantees.... 18
Effect of Obligations Under the Junior Subordinated
Notes and the Guarantee............................. 21
Legal Matters......................................... 22
Experts............................................... 22
</TABLE>
NATIONSBANK(Register mark)
JUNIOR SUBORDINATED NOTES
NB CAPITAL TRUST III
NB CAPITAL TRUST IV
NB CAPITAL TRUST V
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
NATIONSBANK(Register mark)
PROSPECTUS
, 1996
<PAGE>
[ALTERNATE COVER]
(A redherring appears on the left-hand side of this page, rotated 90 degrees.
Text follows:)
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE
BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION
OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 19, 1996
PROSPECTUS
NATIONSBANK(Register mark)
JUNIOR SUBORDINATED NOTES
NB CAPITAL TRUST III
NB CAPITAL TRUST IV
NB CAPITAL TRUST V
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
NATIONSBANK(Register mark)
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time up to $1,031,000,000 in aggregate principal amount of its subordinated
debentures, notes or other evidence of indebtedness (the "Junior Subordinated
Notes") in one or more series and in amounts, at prices and on terms to be
determined at the time of an offering. The Junior Subordinated Notes when issued
will be unsecured obligations of the Corporation. The Corporation's obligations
under the Junior Subordinated Notes will be subordinate and junior in right of
payment to other indebtedness of the Corporation, as may be described in an
accompanying Prospectus Supplement (the "Prospectus Supplement") and in an
aggregate amount to be set forth as of the most recent practicable date in such
Prospectus Supplement.
NB Capital Trust III, NB Capital Trust IV and NB Capital Trust V (each, an
"NB Capital Trust"), each a statutory business trust formed under the laws of
the State of Delaware, may offer, from time to time, capital securities
representing undivided preferred beneficial interests in the assets of the
respective NB Capital Trust ("Preferred Securities") having an aggregate
liquidation value of not in excess of $1,000,000,000. The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of an
NB Capital Trust out of moneys held by such NB Capital Trust, and payment on
liquidation, redemption or otherwise with respect to such Preferred Securities,
will be guaranteed by NationsBank to the extent described herein (each, a
"Preferred Securities Guarantee"). See "DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEES." The Corporation's obligations under each Preferred Securities
Guarantee will be subordinate and junior in right
(CONTINUED ON NEXT PAGE)
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
NATIONSBANK (EXCEPT TO THE EXTENT THAT THE PREFERRED SECURITIES
ARE GUARANTEED BY NATIONSBANK AS DESCRIBED HEREIN), ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT
RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENTS ARE TO BE USED BY
NATIONSBANC CAPITAL MARKETS, INC., A BROKER-DEALER AND A DIRECT WHOLLY-
OWNED SUBSIDIARY OF NATIONSBANK, IN CONNECTION WITH OFFERS AND SALES
RELATED TO SECONDARY MARKET TRANSACTIONS IN THE OFFERED
SECURITIES. NATIONSBANC CAPITAL MARKETS, INC. OR ITS AFFILIATES
MAY ACT AS PRINCIPAL OR AGENT IN SUCH TRANSACTIONS. ANY
SUCH SALES WILL BE MADE AT NEGOTIATED PRICES RELATING
TO PREVAILING MARKET PRICES AT THE TIME OF SALE OR
OTHERWISE.
NATIONSBANC CAPITAL MARKETS, INC.
The date of this Prospectus is , 1996.
<PAGE>
[ALTERNATE COVER]
(CONTINUED FROM PREVIOUS PAGE)
of payment to all other liabilities, including contingent liabilities, of the
Corporation and will rank pari passu with the most senior preferred or
preference stock now or hereafter issued by the Corporation and with any
guarantee now or hereafter entered into by NationsBank in respect of any
preferred or preference stock of any affiliate of the Corporation. A Preferred
Securities Guarantee relating to the Preferred Securities of an NB Capital
Trust, when taken together with the Corporation's obligations under the Junior
Subordinated Notes held by such Trust, the Indenture (as defined herein) and the
Declaration of such Trust (as described herein), including the Corporation's
obligation to pay all costs, expenses, debts and liabilities of such Trust
imposed by the Indenture (other than with respect to the Trust Securities (as
defined herein) of such Trust), will provide a full and unconditional guarantee,
on a subordinated basis to the extent such Trust shall have funds available
therefor by the Corporation of payments due on such Preferred Securities.
Junior Subordinated Notes may be issued and sold from time to time in one
or more series to an NB Capital Trust, or a trustee of such Trust, in connection
with the investment of the proceeds from the offering of Preferred Securities
and Common Securities (as defined herein) of such Trust. The Junior Subordinated
Notes purchased by an NB Capital Trust may be subsequently distributed pro rata
to holders of the Trust Securities in connection with the dissolution of such
Trust upon the occurrence of certain events as may be described in an
accompanying Prospectus Supplement relating to such securities. The Junior
Subordinated Notes, the Preferred Securities and the related Preferred
Securities Guarantees are sometimes collectively referred to hereafter as the
"Offered Securities."
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering. Specific terms of the Junior Subordinated
Notes of any series and of the Preferred Securities of the NB Capital Trust
which will purchase and hold such Notes (the terms of which Preferred Securities
will mirror the terms of such Junior Subordinated Notes), in respect of which
this prospectus (the "Prospectus") is delivered will be set forth in the
Prospectus Supplement relating to such securities. Such Prospectus Supplement
will describe, without limitation and where applicable, the following: (i) in
the case of Junior Subordinated Notes, the specific designation, aggregate
principal amount, denomination, maturity, premium, if any, any exchange,
conversion, prepayment, redemption or sinking fund provisions, if any, interest
rate (which may be fixed or variable), if any, the time and method of
calculating interest payments, if any, dates on which premium, if any, and
interest, if any, will be payable, the right of NationsBank, if any, to defer
payment of interest on the Junior Subordinated Notes and the maximum length of
such deferral period, the initial public offering price, subordination terms,
any listing on a securities exchange and any other specific terms of the
offering; and (ii) in the case of Preferred Securities, the designation, number
of securities, liquidation preference per security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, and any other rights, preferences, privileges,
limitations or restrictions relating to the Preferred Securities, as well as the
terms upon which the proceeds of the sale of the Preferred Securities shall be
used to purchase a specific series of Junior Subordinated Notes of NationsBank.
The Prospectus Supplement relating to any Offered Securities also will contain
specific information regarding any special prepayment or redemption provisions
of the particular securities offered thereby.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NATIONSBANK
CORPORATION, ANY OF THE NB CAPITAL TRUSTS OR NATIONSBANC CAPITAL MARKETS, INC.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF NATIONSBANK CORPORATION OR ANY OF THE NB CAPITAL TRUSTS SINCE THE DATE
HEREOF. NEITHER THIS PROSPECTUS NOR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
2
<PAGE>
[ALTERNATE PAGE]
PLAN OF DISTRIBUTION
This Prospectus and related Prospectus Supplements are to be used by
NationsBanc Capital Markets, Inc. ("NCMI"), a broker-dealer and a direct
wholly-owned subsidiary of NationsBank, in connection with offers and sales of
Offered Securities in secondary market transactions at negotiated prices
relating to prevailing prices at the time of sale or otherwise. NCMI may act as
principal or agent in such transactions. The participation of NCMI in the offer
and sale of the Offered Securities complies with the requirements of Section
2720 of the Conduct Rules of the National Association of Securities Dealers,
Inc. (the "NASD") regarding underwriting of securities of an affiliate. NCMI
will not execute a transaction in the Offered Securities in a discretionary
account without the prior written specific approval of NCMI's customer. NCMI has
no obligation to make a market in the Offered Securities and may discontinue its
market-making activities at any time without notice, at its sole discretion.
Furthermore, NCMI may be required to discontinue its market-marking activities
during periods when the Corporation is involved in a distribution of certain of
its securities or when NCMI, by virtue of its affiliation with the Corporation,
is aware of material non-public information relating to the Corporation. In such
instance, NCMI would not be able to recommence its market-making activities
until such distribution has been completed or such information has become
publicly available. It is not possible to determine the impact, if any, that any
such dicontinuance may have on the market for the Offered Securities. While
other broker-dealers may make a market in the Offered Securities from time to
time, there can be no assurance that any other broker-dealer will do so at any
time when NCMI discontinues its market-making activities.
10
<PAGE>
[ALTERNATE COVER]
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NATIONSBANK
CORPORATION, ANY OF THE NB CAPITAL TRUSTS OR NATIONSBANC CAPITAL MARKETS, INC.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF NATIONSBANK CORPORATION OR THE NB CAPITAL TRUSTS SINCE THE DATE HEREOF.
NEITHER THIS PROSPECTUS NOR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES
AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT ARE TO BE USED BY NATIONSBANC CAPITAL MARKETS, INC., A BROKER-DEALER
AND A DIRECT WHOLLY-OWNED SUBSIDIARY OF NATIONSBANK CORPORATION, IN CONNECTION
WITH OFFERS AND SALES RELATED TO SECONDARY MARKET TRANSACTIONS.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Incorporation of Certain Documents by Reference....... 3
Available Information................................. 3
NationsBank Corporation............................... 4
The Trusts............................................ 8
Use of Proceeds....................................... 9
Ratios of Earnings to Fixed Charges and to Combined
Fixed Charges and Preferred Stock Dividends......... 9
Plan of Distribution.................................. 10
Description of the Junior Subordinated Notes.......... 11
Description of the Preferred Securities............... 15
Description of the Preferred Securities Guarantees.... 18
Effect of Obligations Under the Junior Subordinated
Notes and the Guarantee............................. 21
Legal Matters......................................... 22
Experts............................................... 22
</TABLE>
NATIONSBANK(Register mark)
JUNIOR SUBORDINATED NOTES
NB CAPITAL TRUST III
NB CAPITAL TRUST IV
NB CAPITAL TRUST V
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
NATIONSBANK(Register mark)
PROSPECTUS
NATIONSBANC CAPITAL MARKETS, INC.
, 1996
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee..................... $ 312,424
Printing and Engraving Expenses..................... 275,000
Legal Fees and Expenses............................. 450,000
Accounting Fees and Expenses........................ 100,000
Blue Sky Fees and Expenses.......................... 50,000
Indenture Trustee Expenses.......................... 175,000
Rating Agency Fees and Expenses..................... 225,000
Miscellaneous....................................... 12,576
$1,600,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Corporation's Restated Articles of
Incorporation, and no contracts between the Corporation and its directors and
officers, relating to indemnification. The Corporation's Restated Articles of
Incorporation prevent the recovery by the Corporation of monetary damages
against its directors. However, in accordance with the provisions of the North
Carolina Business Corporation Act (the "Act"), the Corporation's Amended and
Restated Bylaws provide that, in addition to the indemnification of directors
and officers otherwise provided by the Act, the Corporation shall, under certain
circumstances, indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation expense,
including reasonable attorneys' fees, arising out of their status or activities
as directors and officers, except for liability or litigation expense incurred
on account of activities that were at the time known or reasonably should have
been known by such director or officer to be clearly in conflict with the best
interests of the Corporation. Pursuant to such bylaw and as authorized by
statute, the Corporation maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such capacity
whether or not such directors or officers have the right to indemnification
pursuant to the bylaw or otherwise.
In addition to the above-described provisions, Sections 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a current or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believed (x) that his conduct in his official capacity with the corporation was
in its best interests and (y) in all other cases his conduct was at least not
opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. A corporation may not indemnify a current or former director in
connection with a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him in which he was adjudged
liable on such basis. The above standard of conduct is determined by the Board
of Directors or a committee thereof or special legal counsel or the shareholders
as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to indemnify
a director or officer in the defense of any proceeding to which he was a party
because of his capacity as a director or officer against reasonable expenses
when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54. Section 55-8-56 allows a
corporation to indemnify and advance expenses to an officer, employee or agent
who is not a director to the same extent as a director or as otherwise set forth
in the Corporation's articles of incorporation or bylaws or by resolution of the
Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS OF NORTH
CAROLINA LAW DEALING WITH INDEMNIFICATION OF DIRECTORS AND OFFICERS AND DOES NOT
PURPORT TO BE COMPLETE. IT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
RELEVANT STATUTES
II-1
<PAGE>
WHICH CONTAIN DETAILED SPECIFIC PROVISIONS REGARDING THE CIRCUMSTANCES UNDER
WHICH AND THE PERSON FOR WHOSE BENEFIT INDEMNIFICATION SHALL OR MAY BE MADE AND
ACCORDINGLY ARE INCORPORATED HEREIN BY REFERENCE.
The respective Declarations of Trust of NB Capital Trust III, NB Capital
Trust IV and NB Capital Trust V (each a "Trust" and together the "Trusts")
provide that to the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each of the Regular Trustees of the respective
Trust, any Affiliate of any such Regular Trustee, any officer, director,
shareholder, member, partner, employee, representative or agent of any such
Regular Trustee, or any employee or agent of the Trust or its Affiliates (each a
"Company Indemnified Person"), from and against any loss, damage or claim
incurred by such Company Indemnified Person by reason of any act or omission
performed or omitted by such Company Indemnified Person in good faith on behalf
of the Trust and in a manner such Company Indemnified Person 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 illegal. The Declarations of Trust also provide that, to the fullest
extent permitted by applicable law, expenses (including legal fees) incurred by
a Company Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action suit or proceeding upon receipt
by the Company of any undertaking by or on behalf of the Company Indemnified
Person to repay such amount if it shall be determined that the Company
Indemnified Person is not entitled to be indemnified as authority in the
Declaration of Trust. The Declarations of Trust further provide that no Company
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person (as defined therein) or for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Company Indemnified Person in good faith on behalf of the Trust
and in a manner such Company Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Company Indemnified Person by the
Declaration of Trust or by law, except that a Company Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such Company
Indemnified Person's gross negligence or willful misconduct with respect to acts
or omissions.
In addition, certain sections of each of the form of Underwriting Agreement
filed as an Exhibit hereto provide for indemnification of the Registrants and
their directors and officers by the underwriters or agents against certain
liabilities, including certain liabilities under the Securities Act. From time
to time similar provisions have been contained in other agreements relating to
other securities of the Corporation.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement for offering of Preferred Securities
4.1 Certificate of Trust of NB Capital Trust III, incorporated herein by reference to Exhibit 4.3 of
the Corporation's Registration Statement on Form S-3 (File No. 333-15375)
4.2 Certificate of Trust of NB Capital Trust IV
4.3 Certificate of Trust of NB Capital Trust V
4.4 Declaration of Trust of NB Capital Trust III, incorporated herein by reference to Exhibit 4.6 of
the Corporation's Registration Statement on Form S-3 (File No. 333-15375)
4.5 Declaration of Trust of NB Capital Trust IV
4.6 Declaration of Trust of NB Capital Trust V
4.7 Form of Amended and Restated Declaration of Trust for each NB Capital Trust
4.8 Indenture between NationsBank Corporation and The Bank of New York, as Trustee, incorporated
herein by reference to Exhibit 4.10 of the Corporation's Registration Statement on Form S-3
(File No. 333-15375)
4.9 Form of Supplemental Indenture to be used in connection with the issuance of Junior Subordinated
Notes
4.10 Form of Preferred Security (included in 4.7 above)
4.11 Form of Junior Subordinated Note (included in 4.9 above)
4.12 Form of Guarantee with respect to Preferred Securities issued by the respective NB Capital
Trusts
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P.
5.2 Opinion of Richards, Layton & Finger
8.1 Form of Opinion of Stroock & Stroock & Lavan
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein by reference to Exhibit
12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996 (File No. 1-6523)
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.4 Consent of Richards, Layton & Finger (included in Exhibit 5.2)
23.5 Consent of Stroock & Stroock & Lavan
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Debt Trustee under the Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust III
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust IV
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust V
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust III
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust IV
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust V
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
II-3
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the
Corporation's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a director, officer or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, North Carolina, on December 19, 1996.
NATIONSBANK CORPORATION
(REGISTRANT)
By: *HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
*HUGH L. MCCOLL, JR. Chairman of the Board, Chief Executive December 19, 1996
Officer and Director (Principal
(HUGH L. MCCOLL, JR.) Executive Officer)
/s/ JAMES H. HANCE, JR. Vice Chairman and Chief Financial December 19, 1996
Officer (Principal Financial Officer)
(JAMES H. HANCE, JR.)
/s/ MARC D. OKEN Executive Vice President December 19, 1996
and Chief Accounting Officer
(MARC D. OKEN) (Principal Accounting
Officer)
*RONALD W. ALLEN Director December 19, 1996
(RONALD W. ALLEN)
*RAY C. ANDERSON Director December 19, 1996
(RAY C. ANDERSON)
*WILLIAM M. BARNHARDT Director December 19, 1996
(WILLIAM M. BARNHARDT)
*THOMAS E. CAPPS Director December 19, 1996
(THOMAS E. CAPPS)
*CHARLES W. COKER Director December 19, 1996
(CHARLES W. COKER)
*THOMAS G. COUSINS Director December 19, 1996
(THOMAS G. COUSINS)
*ALAN T. DICKSON Director December 19, 1996
(ALAN T. DICKSON)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
*W. FRANK DOWD, JR. Director December 19, 1996
(W. FRANK DOWD, JR.)
*PAUL FULTON Director December 19, 1996
(PAUL FULTON)
*TIMOTHY L. GUZZLE Director December 19, 1996
(TIMOTHY L. GUZZLE)
*W. W. JOHNSON Director December 19, 1996
(W. W. JOHNSON)
*JOHN J. MURPHY Director December 19, 1996
(JOHN J. MURPHY)
*JOHN C. SLANE Director December 19, 1996
(JOHN C. SLANE)
*O. TEMPLE SLOAN, JR. Director December 19, 1996
(O. TEMPLE SLOAN, JR.)
*JOHN W. SNOW Director December 19, 1996
(JOHN W. SNOW)
*MEREDITH R. SPANGLER Director December 19, 1996
(MEREDITH R. SPANGLER)
*ROBERT H. SPILMAN Director December 19, 1996
(ROBERT H. SPILMAN)
*RONALD TOWNSEND Director December 19, 1996
(RONALD TOWNSEND)
*E. CRAIG WALL, JR. Director December 19, 1996
(E. CRAIG WALL, JR.)
*JACKIE M. WARD Director December 19, 1996
(JACKIE M. WARD)
*VIRGIL R. WILLIAMS Director December 19, 1996
(VIRGIL R. WILLIAMS)
*By: /s/ PAUL J. POLKING
PAUL J. POLKING, ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto authorized,
in the City of Charlotte, North Carolina, on December 19, 1996.
NB CAPITAL TRUST III
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto authorized,
in the City of Charlotte, North Carolina, on December 19, 1996.
NB CAPITAL TRUST IV
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto authorized,
in the City of Charlotte, North Carolina, on December 19, 1996.
NB CAPITAL TRUST V
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
<C> <S> <C>
1.1 Form of Underwriting Agreement for offering of Preferred Securities
4.1 Certificate of Trust of NB Capital Trust III, incorporated herein by reference to Exhibit 4.3 of the
Corporation's Registration Statement on Form S-3 (File No. 333-15375)
4.2 Certificate of Trust of NB Capital Trust IV
4.3 Certificate of Trust of NB Capital Trust V
4.4 Declaration of Trust of NB Capital Trust III, incorporated herein by reference to Exhibit 4.6 of the
Corporation's Registration Statement on Form S-3 (File No. 333-15375)
4.5 Declaration of Trust of NB Capital Trust IV
4.6 Declaration of Trust of NB Capital Trust V
4.7 Form of Amended and Restated Declaration of Trust for each NB Capital Trust
4.8 Indenture between NationsBank Corporation and The Bank of New York, as Trustee, incorporated herein
by reference to Exhibit 4.10 of the Corporation's Registration Statement on Form S-3 (File No.
333-15375)
4.9 Form of Supplemental Indenture to be used in connection with the issuance of Junior Subordinated
Notes
4.10 Form of Preferred Security (included in 4.7 above)
4.11 Form of Junior Subordinated Note (included in 4.9 above)
4.12 Form of Guarantee with respect to Preferred Securities issued by the respective NB Capital Trusts
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P.
5.2 Opinion of Richards, Layton & Finger
8.1 Form of Opinion of Stroock & Stroock & Lavan
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein by reference to Exhibit
12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996
(File No. 1-6523)
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.4 Consent of Richards, Layton & Finger (included in Exhibit 5.2)
23.5 Consent of Stroock & Stroock & Lavan
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Debt Trustee under the Indenture
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital Trust III
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital Trust IV
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital Trust V
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank Corporation
for the benefit of the holders of Preferred Securities of NB Capital Trust III
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank Corporation
for the benefit of the holders of Preferred Securities of NB Capital Trust IV
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York,
as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank Corporation
for the benefit of the holders of Preferred Securities of NB Capital Trust V
</TABLE>
__________ Capital Securities
NB CAPITAL TRUST __
(a Delaware Trust)
____% Capital Securities
(Liquidation Amount of $______ per Capital Security)
FORM OF UNDERWRITING AGREEMENT
---------------
_________ __, 1996
[Underwriters]
Ladies and Gentlemen:
NB Capital Trust ____ (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (S)(S) 3801 et
seq.), and NationsBank Corporation, a North Carolina corporation (the "Company"
and, together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with [Underwriters] and each of the several Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 9
hereof), for whom [Underwriters] are acting as representatives (in such
capacity, the "Representatives", however, if the Underwriters named in Schedule
A hereto include only [Underwriters], then all references in this Agreement to
the Representatives shall be deemed references to the Underwriters), with
respect to the sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of ____% Capital Securities
(liquidation amount of $_____ per Capital Security) of the Trust (the "Capital
Securities") set forth in Schedule A attached hereto. The Capital Securities
will be guaranteed on a subordinated basis by the Company, to the extent set
forth in the Prospectus (as defined herein), with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Capital Securities
Guarantee") pursuant to the Capital Securities Guarantee Agreement, to be dated
as of _______ ___, 1996, (the "Capital Securities Guarantee Agreement"), between
the Company and The Bank of New York, as trustee (the "Guarantee Trustee"), and
will be entitled to the benefits of certain backup undertakings described in the
Prospectus (as defined herein) with respect to the Company's agreement pursuant
to the Supplemental Indenture (as defined herein) to pay all expenses relating
to administration of the Trust (other than payment obligations with respect to
the Capital Securities). The Capital Securities and the related Capital
Securities Guarantees are referred to herein as the "Securities."
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-15375) and a
related prospectus for the
<PAGE>
registration under the Securities Act of 1933, as amended (the "1933 Act") of
(i) the Capital Securities, (ii) the Capital Securities Guarantee, and (iii) the
Junior Subordinated Notes (as defined below) to be issued and sold to the Trust
by the Company, have filed such amendments thereto, if any, and such amended
prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may hereafter be
required. Such registration statement (as amended) and the prospectus
constituting a part thereof (including, in each case, all documents incorporated
or deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act and the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations")), as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively, except that, if any
revised prospectus shall be provided to the Underwriters by the Offerors for use
in connection with the offering of the Capital Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. All references in this
Agreement to financial statements and schedules and other information that is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information that
are or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act that
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Declaration (as defined
herein), the Indenture (as defined herein) and the Capital Securities Guarantee
have been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). The entire proceeds to the Trust from the sale of the Capital Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities"), as guaranteed on a
subordinated basis by the Company, to the extent set forth in the Prospectus,
with respect to distributions and payments upon liquidation and redemption
thereof (the "Common Securities Guarantee" and together with the Capital
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement, to be dated as of _________ __, 1996, (the "Common
Securities Guarantee Agreement" and, together with the Capital Securities
Guarantee Agreement, the "Guarantee Agreements") and will be used by the Trust
to purchase the $___________ aggregate principal amount of ____% Junior
Subordinated Deferrable Interest Notes due ____ (the "Junior Subordinated
Notes") issued by the Company, under the Indenture (as defined herein). The
Capital Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of _________
__, 1996 (the "Declaration"), among the
2
<PAGE>
Company, as Sponsor, John E. Mack, William L. Maxwell and Marc D. Oken, as
trustees (the "Regular Trustees"), The Bank of New York (Delaware), a Delaware
banking corporation (as "Delaware Trustee"), and The Bank of New York, a New
York banking corporation, as property trustee (the "Property Trustee" and,
together with the Delaware Trustee and Regular Trustees, the "Trustees"), and
the holders from time to time of undivided beneficial interests in the assets of
the Trust. The Junior Subordinated Notes will be issued pursuant to an
indenture, dated as of November 27, 1996 (the "Base Indenture"), between the
Company and The Bank of New York, as trustee (the "Debt Trustee"), and a
supplement to the Base Indenture, to be dated as of _________ __, 1996 (the
"Supplemental Indenture," and together with the Base Indenture, the
"Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Offerors jointly and
severally represent and warrant to each Underwriter as of the date hereof and as
of the Closing Time (as hereinafter defined) as follows:
(i) At the time the Registration Statement became effective
and as of the date hereof, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, dated the date
hereof (unless the term "Prospectus" refers to a prospectus that has
been provided to the Underwriters by the Trust for use in connection
with the offering of the Securities and that differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case, at the time it is first
provided to the Underwriters for such use) and at Closing Time does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, the Offerors make no representations or warranties
as to (A) that part of the Registration Statement which constitutes the
Statements of Eligibility and Qualification (Forms T-1) under the 1939
Act of the Debt Trustee, the Property Trustee or the Guarantee Trustee
or (B) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Offerors by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement and the Prospectus and actually included therein.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or Prospectus, at the time
they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
3
<PAGE>
(iii) To the best knowledge of the Offerors, Price Waterhouse
LLP, the accountants who certified the financial statements and
supporting schedules included in or incorporated by reference into the
Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) The Trust has been duly created and is validly existing
and in good standing as a business trust under the Delaware Act with
the power and authority to own property and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Capital
Securities, the Common Securities and the Declaration; the Trust is not
a party to or otherwise bound by any agreement other than those
described in the Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor trust and not as
an association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(v) The Common Securities have been duly authorized by the
Trust pursuant to the Declaration and, when issued and delivered by the
Trust to the Company against payment therefor as described in the
Registration Statement and Prospectus, will be validly issued and,
subject to the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform to all statements relating thereto contained in the Prospectus;
the issuance of the Common Securities is not subject to preemptive or
other similar rights.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(vii) The Declaration has been duly authorized by the Company,
as Sponsor, and will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee, the Declaration is
and will be a valid and binding obligation of the Company, the Trust
and the Regular Trustees, enforceable against the Company and the
Regular Trustees in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific enforcement
of remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) (or any
successor statute) and any bank regulatory powers now or hereafter in
effect and to the application of principles of public policy
(collectively, the "Permitted Exceptions") and will conform to all
statements relating thereto in the Prospectus; and the Declaration has
been duly qualified under the 1939 Act.
(viii) Each of the Guarantee Agreements has been duly
authorized by the Company and, when validly executed and delivered by
the Company, and, in the case of the Capital Securities Guarantee
Agreement, assuming due authorization, execution and
4
<PAGE>
delivery of the Capital Securities Guarantee by the Guarantee Trustee,
will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except
to the extent that enforcement thereof may be limited by the Permitted
Exceptions, and each of the Guarantees and the Guarantee Agreements
will conform to all statements relating thereto contained in the
Prospectus; and the Trust pursuant to the Capital Securities
Guarantee Agreement will have been duly qualified under the
1939 Act.
(ix) The Capital Securities have been duly authorized by the
Trust pursuant to the Declaration and, when issued and delivered
pursuant to this Agreement against payment of the consideration
therefor set forth in Schedule B hereto will be validly issued and,
subject to the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the Trust, will be entitled to the
benefits of the Declaration and will conform to all statements relating
thereto contained in the Prospectus; the issuance of the Capital
Securities is not subject to preemptive or other similar rights; and,
subject to the terms of the Declaration, holders of Capital Securities
will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit.
(x) Each of the Regular Trustees of the Trust is an employee
of the Company and has been duly authorized by the Company to execute
and deliver the Declaration; the Declaration has been duly executed and
delivered by the Regular Trustees and is a valid and binding obligation
of each Regular Trustee, enforceable against such Regular Trustee in
accordance with its terms except to the extent that enforcement thereof
may be limited by the Permitted Exceptions.
(xi) None of the Offerors is, and upon the issuance and sale
of the Capital Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus none will be,
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xii) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in connection
with the issuance and sale of the Common Securities or the offering of
the Capital Securities, the Junior Subordinated Notes or the Guarantees
hereunder, except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws and the qualification of
the Declaration, the Capital Securities Guarantee Agreement and the
Indenture under the 1939 Act.
(b) The Company represents and warrants to each Underwriter as
of the date hereof and as of the Closing Time as follows:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has been no
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material adverse change in the condition, financial or otherwise, or in
the earnings or business affairs of the Trust or the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business.
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina with corporate power to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
to enter into and perform its obligations under this Agreement, the
Declaration, as Sponsor, the Indenture and each of the Guarantee
Agreements and to purchase, own, and hold the Common Securities issued
by the Trust; the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the character or
location of its properties or the nature or the conduct of its business
requires such qualification, except for any failures to be so qualified
or in good standing which, taken as a whole, are not material to the
Company and its subsidiaries, considered as one enterprise.
(iii) NationsBank, National Association, NationsBank, National
Association (South) and NationsBank of Texas, National Association (or
the successors to such entities) (collectively, the "Principal
Subsidiary Banks") are national banking associations formed under the
laws of the United States and authorized thereunder to transact
business; all of the issued and outstanding capital stock of each
Principal Subsidiary Bank has been duly authorized and validly issued,
is fully paid and non-assessable; and the capital stock of each
Principal Subsidiary Bank owned by the Company, directly or through
subsidiaries, is owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iv) The Indenture has been duly authorized by the Company
and, when validly executed and delivered by the Company, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Permitted Exceptions;
the Indenture will conform to all statements relating thereto contained
in the Prospectus; and the Indenture has been duly qualified under the
1939 Act.
(v) The Junior Subordinated Notes have been duly authorized by
the Company and have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Permitted Exceptions,
will be in the form contemplated by, and subject to the Permitted
Exceptions entitled to the benefits of, the Indenture and will conform
to all statements relating thereto in the Prospectus.
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(vi) The Company's obligations under the Guarantee Agreements
are subordinate and junior in right of payment to all liabilities of
the Company and are pari passu with the most senior preferred stock
issued by the Company.
(vii) The Junior Subordinated Notes are subordinated and
junior in right of payment to all "Senior Obligations" (as defined in
the Indenture) of the Company.
(viii) Each holder of securities of the Company having rights
to the registration of such securities under the Registration Statement
has waived such rights or such rights have expired by reason of lapse
of time following notification of the Company's intention to file the
Registration Statement.
(ix) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and
compliance by the Company with its obligations hereunder will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Principal Subsidiary
Banks pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of the
Principal Subsidiary Banks is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any of the Principal Subsidiary Banks is subject (except for conflicts,
breaches and defaults which would not, individually or in the
aggregate, be materially adverse to the Company and its subsidiaries
taken as a whole or materially adverse to the transactions contemplated
by this Agreement), nor will such action result in any material
violation of the provisions of the articles of incorporation or by-laws
of the Company, or any applicable law, administrative regulation or
administrative or court decree.
(c) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
(d) The Trust represents and warrants to each Underwriter as
of the date hereof and as of the Closing Time (as hereinafter defined) as
follows:
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings or
business affairs of the Trust, whether or not arising in the ordinary
course of business, and (B) there have been no transactions entered
into by the Trust, other than in the ordinary course of business, which
are material with respect to the Trust.
(ii) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
best knowledge of the Trust, threatened, against or affecting the
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Trust that is required to be disclosed in the Prospectus, other than
actions, suits or proceedings which are not reasonably expected,
individually or in the aggregate, to have a material adverse effect on
the condition, financial or otherwise, or in the earnings or business
affairs of the Trust, whether or not arising in the ordinary course of
business; and there are no transactions, contracts or documents of the
Trust that are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations that have not
been so filed.
(iii) The Trust possesses adequate certificates, authorities
or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies to conduct the business now operated by
it, and the Trust has not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding would materially and adversely
affect the condition, financial or otherwise, or in the earnings or
business affairs of the Trust.
(iv) The execution, delivery and performance of this
Agreement, the Declaration and the Guarantee Agreements, the issuance
and sale of the Capital Securities and the Common Securities, and the
consummation of the transactions contemplated herein and therein and
compliance by the Trust with its obligations hereunder and thereunder
have been duly authorized by all necessary action (corporate or
otherwise) on the part of the Trust and do not and will not result in
any violation of the Declaration or Certificate of Trust and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Trust is a party or by which it may be bound or to which any of its
properties may be subject or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body
or administrative agency or other governmental body having jurisdiction
over the Trust, or any of its properties (except for conflicts,
breaches, violations or defaults which would not, individually or in
the aggregate, be materially adverse to the Trust, or materially
adverse to the transactions contemplated by this Agreement).
(e) Each certificate signed by any Trustee of the Trust and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Trust to each Underwriter as to the
matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at
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<PAGE>
the price per security set forth in the Schedule B, the number of Capital
Securities set forth in Schedule A opposite the name of such Underwriter (except
as otherwise provided in Schedule B), plus any additional number of Capital
Securities that such Underwriter may become obligated to purchase pursuant to
the provisions of Section 9 hereof.
The purchase price per security to be paid by the several Underwriters
for the Capital Securities shall be an amount equal to the initial public
offering price. The initial public offering price per Capital Security shall be
a fixed price to be determined by agreement between the Underwriter and the
Offerors. The initial public offering price and the purchase price are be set
forth in Schedule B. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Capital
Securities will be used to purchase the Junior Subordinated Notes of the
Company, the Company hereby agrees to pay at Closing Time directly to the
Underwriters, a commission per Capital Security determined by agreement between
the Representatives and the Company for the Capital Securities to be delivered
by the Trust hereunder at Closing Time. The commission is set forth in Schedule
B.
(b) Payment of the purchase price for, and delivery of certificates
for, the Capital Securities shall be made at the office of Stroock & Stroock &
Lavan, or at such other place as shall be agreed upon by the Representatives,
the Company and the Trust, at 10:00 A.M. New York time on the fourth business
day (unless postponed in accordance with the provisions of Section 9) after the
date hereof, or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives, the Trust and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer or certified or official
bank check or similar same day funds payable to the order of the Trust to an
account designated by the Trust, against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the Capital
Securities to be purchased by them. Unless otherwise agreed, certificates for
the Capital Securities shall be in the form set forth in the Declaration, and
such certificates shall be deposited with a custodian (the "Custodian") for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under this Section 2 hereof
by wire transfer or certified or official bank check or checks payable to the
Representatives in same day funds.
SECTION 3. OVENANTS OF THE OFFERORS. Each of the Offerors jointly and
severally covenants with each Underwriter as follows:
(a) The Offerors will notify the Representatives promptly, and confirm
the notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto (including any post-effective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
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<PAGE>
Registration Statement or the initiation of any proceedings for that purpose.
The Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) The Offerors will give the Representatives notice of their
intention to file or prepare (i) any amendment to the Registration Statement
(including any post-effective amendment), (ii) any amendment or supplement to
the Prospectus (including any revised prospectus which the Offerors propose for
use by the Underwriters in connection with the offering of the Capital
Securities which differs from the prospectus on file at the Commission at the
time the Registration Statement became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), or (iii) any document that would as a result thereof be
incorporated by reference in the Prospectus whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives with copies of any
such amendment, supplement or other document within a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file any
such amendment, supplement or other document or use any such prospectus to which
the Underwriters or counsel for the Underwriters shall reasonably object.
Subject to the foregoing, the Offerors will file the Prospectus pursuant to Rule
424(b) and Rule 430A under the Act not later than the Commission's close of
business on the second business day following the execution and delivery of this
Agreement.
(c) The Offerors will deliver to the Representatives as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein) as
the Representatives may reasonably request and will also deliver to the
Representatives a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(d) The Offerors will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Capital Securities, any event shall
occur as a result of which the Prospectus as then amended or supplemented will
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of the circumstances
under which they were made not misleading or if it shall be necessary to amend
or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Offerors will, subject to paragraph
(b) above, promptly prepare and file with the Commission such amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance and the Offerors will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
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<PAGE>
(f) The Offerors will endeavor, in cooperation with the Underwriters,
to qualify the Capital Securities (and the Capital Securities Guarantee) and the
Junior Subordinated Notes for offering and sale under the applicable securities
laws of such states and the other jurisdictions of the United States as the
Underwriters may designate; provided, however, that none of the Offerors shall
be obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified.
(g) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (which need not
be audited) of the Company and its subsidiaries, covering an applicable period
beginning not later than the first day of the Company's fiscal quarter next
following the "Effective Date" (as defined in Rule 158(c) under the 1933 Act) of
the Registration Statement, which will satisfy the provisions of Section 11(a)
of the 1933 Act.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of each Offerors' obligations under this Agreement,
and will pay: (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Capital Securities, (iii) the fees and
disbursements of the Company's and the Trust's counsel and accountants, (iv) the
qualification of the Capital Securities, the Capital Securities Guarantee and
the Junior Subordinated Notes under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of Stroock & Stroock & Lavan, counsel for the Underwriters, in
connection therewith and in connection with the preparation of any blue sky
survey, (v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the National Association of
Securities Dealers, Inc. (the "NASD"), if applicable, (viii) the fees and
expenses of the Debt Trustee, including the fees and disbursements of counsel
for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Property Trustee, the
Delaware Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Declaration and the
Certificate of Trust; (x) any fees payable in connection with the rating of the
Capital Securities and Junior Subordinated Notes; (xi) the cost and charges of
any transfer agent or registrar and (xii) the cost of qualifying the Capital
Securities with DTC.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9 hereof, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of Stroock & Stroock & Lavan,
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Offerors herein contained or in certificates of officers
of the Company or trustees of the Trust,
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to the performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become effective prior to the
date hereof or at such later time and date as may be approved by the
Representatives and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Regulations and in
accordance with Section 3(b), and prior to Closing Time, the Offerors shall have
provided evidence satisfactory to the Representatives of such timely filing.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated as of the Closing Time, to the effect of
paragraphs (i) and (v) through (xvi) below, and the favorable opinion of Paul J.
Polking, General Counsel to the Company, dated as of the Closing Time, to the
effect of paragraphs (ii), (iii) and (iv) below:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of North
Carolina, has the corporate power and authority to own its properties,
conduct its business as described in the Prospectus and perform its
obligations under this Agreement, and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
the Principal Subsidiary Banks are national banking associations formed
under the laws of the United States and authorized thereunder to
transact business.
(ii) Except for those jurisdictions specifically enumerated in
such opinion, neither the Company nor any of the Principal Subsidiary
Banks is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction.
(iii) All the outstanding shares of capital stock of each
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss. 55,
as amended) non-assessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Principal
Subsidiary Banks (except directors' qualifying shares) are owned,
directly or indirectly, by the Company free and clear of any perfected
security interest and, to the best knowledge of such counsel, any other
security interests, claims, liens or encumbrances.
(iv) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract, or
other document of a character required
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to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required.
(v) The Registration Statement has become effective under the
1933 Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(subject to the Permitted Exceptions, and except insofar as the
enforceability of the indemnity and contribution provisions contained
in this Agreement may be limited by federal and state securities laws).
(vii) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the offering, issuance or sale of the Capital Securities, the
Capital Securities Guarantee and the Junior Subordinated Notes by the
Offerors, except (A) such as may be required under the 1933 Act and the
1933 Act Regulations and such as may be required under the blue sky or
insurance laws of any jurisdiction, and (B) the qualification of the
Declaration, the Capital Securities Guarantee Agreement and the
Indenture under the 1939 Act.
(viii) The Declaration has been duly authorized, executed and
delivered by the Company and the Regular Trustees and has been duly
qualified under the 1939 Act.
(ix) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Capital
Securities Guarantee Agreement, assuming it is duly authorized,
executed and delivered by the Guarantee Trustee, constitutes a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Permitted Exceptions; and the Capital
Securities Guarantee Agreement has been duly qualified under the 1939
Act. The Common Securities Guarantee Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Permitted Exceptions.
(x) The Indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of the
Company, enforceable against the Company in accordance
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with its terms, except to the extent that enforcement thereof may be
limited by the Permitted Exceptions; the Indenture has been duly
qualified under the 1939 Act; and the Indenture conforms to the
description thereof in the Prospectus.
(xi) The Junior Subordinated Notes have been duly authorized
and executed by the Company and, when authenticated by the Trustee in
the manner provided in the Indenture and delivered against payment
therefor, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the Permitted
Exception; and the Junior Subordinated Notes conform to the description
thereof in the Prospectus.
(xii) Neither the Company nor the Trust is, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus neither will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the 1940
Act.
(xiii) The Common Securities, the Capital Securities and the
Declaration conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xiv) All of the issued and outstanding Common Securities of
the Trust are directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xv) The Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus.
(xvi) This Agreement has been duly executed and delivered
by the Trust.
In rendering such opinions, such counsels may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing believed to
be reliable and who are satisfactory to counsel for the Underwriters; and (B) as
to matters of fact, to the extent deemed proper, on the representations and
warranties of the Offerors contained herein or in the Declaration, the
Indenture, the Guarantee Agreements, that certain subscription agreement, of
even date herewith, between the Company and the Trust covering the Common
Securities and that certain note purchase agreement, of even date herewith,
between the Company and the Trust or on certificates of responsible officers of
the Company and its subsidiaries and public officials.
(2) The favorable opinion of Richards, Layton & Finger,
Special Delaware counsel to the Offerors, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
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(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have
been made; the Trust has all necessary power and authority to own
property and to conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its
obligations under this Agreement, the Capital Securities and the Common
Securities.
(ii) Assuming due authorization, execution and delivery by the
Company and the Trustees, the Declaration is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by the Permitted Exceptions.
(iii) The Common Securities have been duly authorized by the
Declaration and are validly issued and represent undivided beneficial
interests in the assets of the Trust.
(iv) The Capital Securities have been duly authorized by the
Declaration and are validly issued and, subject to the terms of the
Declaration, when delivered to and paid for by the Underwriters
pursuant to this Agreement, will be validly issued, fully paid and
non-assessable beneficial interests in the assets of the Trust; the
holders of the Capital Securities will, subject to the terms of the
Declaration, be entitled to the same limitation of personal liability
under Delaware law as is extended to stockholders of private
corporations for profit; and the issuance of the Capital Securities is
not subject to preemptive or other similar rights.
(v) This Agreement has been duly authorized by the Trust.
(vi) The issuance and sale by the Trust of the Capital
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the
Trust of the transactions contemplated hereby and the compliance by the
Trust with its obligations hereunder will not violate (A) any of the
provisions of the Certificate of Trust or the Declaration or (B) any
applicable Delaware law or administrative regulation.
(3) The favorable opinion of Richards, Layton & Finger,
Special Delaware counsel to The Bank of New York (Delaware), in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York (Delaware) is a Delaware banking
corporation with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of the Declaration.
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(ii) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of, the Delaware Trustee. The Declaration
has been duly executed and delivered by the Delaware Trustee, and
constitutes the legal, valid and binding obligation of the Delaware
Trustee, enforceable against the Delaware Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions.
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee does not conflict with or
constitute a breach of the articles of organization or bylaws of the
Delaware Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(4) The favorable opinion, dated as of Closing Time, of
Emmett, Marvin & Martin, LLP, counsel of The Bank of New York, as Debt Trustee
under the Indenture, as Guarantee Trustee under the Capital Securities Guarantee
Agreement, and as Property Trustee under the Declaration, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York is a New York banking corporation
with trust powers, duly organized, validly existing and in good
standing under the laws of the State of New York with all necessary
power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of the Declaration, the
Indenture and the Capital Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the Debt
Trustee of the Indenture, the execution, delivery and performance by
the Property Trustee of the Declaration, and the execution, delivery
and performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement have been duly authorized by all necessary
corporate action on the part of the Debt Trustee, the Property Trustee
and the Guarantee Trustee, respectively. The Indenture has been duly
executed and delivered by the Debt Trustee, and constitutes the legal,
valid and binding obligations of the Debt Trustee, enforceable against
the Debt Trustee in accordance with its terms, except as enforcement
thereof may be limited by the Permitted Exceptions. The Declaration has
been duly executed and delivered by the Property Trustee, and
constitutes the legal, valid and binding obligations of the Property
Trustee, enforceable against the Property Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions. The Capital Securities Guarantee Agreement has
been duly executed and delivered by the Guarantee Trustee, and
constitutes the legal, valid and binding obligations of the Guarantee
Trustee, enforceable against the Guarantee Trustee in accordance with
its terms, except as enforcement thereof may be limited by the
Permitted Exceptions.
16
<PAGE>
(iii) The execution, delivery and performance of the Indenture
by the Debt Trustee, does not conflict with or constitute a breach of
the Articles of Organization or Bylaws of the Debt Trustee. The
execution, delivery and performance of the Declaration by the Property
Trustee does not conflict with or constitute a breach of the Articles
of Organization or Bylaws of the Property Trustee. The execution,
delivery and performance of the Capital Securities Guarantee Agreement
by the Guarantee Trustee does not conflict with or constitute a breach
of the Articles of Organization or Bylaws of the Guarantee Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Debt Trustee
of the Indenture. No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking
authority is required for the execution, delivery or performance by the
Property Trustee of the Declaration. No consent, approval or
authorization of, or registration with or notice to, any New York or
federal banking authority is required for the execution, delivery or
performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement.
(5) The favorable opinion, dated as of Closing Time, of
Stroock & Stroock & Lavan, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the legal existence of the
Company and the Trust, the Capital Securities, the Indenture, the Capital
Securities Guarantee Agreement, this Agreement, the Registration Statement, the
Prospectus and other related matters as the Representatives may require.
In giving its opinion, Stroock & Stroock & Lavan may rely as
to certain matters of Delaware law upon the opinion of Richards, Layton &
Finger, counsel for the Offerors, which shall be delivered in accordance with
Section 5(b)(2) hereto.
(6) The favorable opinion of Stroock & Stroock & Lavan,
special tax counsel to the Company and the Trust, as to certain Federal tax
matters set forth in the Prospectus under "United States Federal Income
Taxation."
(7) In giving their opinions required by subsection (b), of
this Section, Mr. Polking and Smith Helms Mulliss & Moore, L.L.P. shall each
additionally state that nothing has come to their attention that has caused them
to believe that the Registration Statement (except for financial statements and
schedules and other financial or statistical data included or incorporated by
reference, therein, as to which counsel need make no statement), at the time it
became effective or as of the date of their respective opinions, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference therein, as
to which counsel need make no statement), as at the date hereof or at Closing
Time, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
17
<PAGE>
(8) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Trust or the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, and the Representatives shall
have received a certificate of a Vice President of the Company and of the chief
financial or chief accounting officer of the Company and a certificate of a
Regular Trustee of the Trust, and dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Trust or
the Company, as the case may be, have complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(9) At the Closing Time, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters (which may refer to letters
previously delivered to the Representatives), dated as of the Closing Time, in
form and substance satisfactory to the Representatives, confirming that the
response, if any, to Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the
1933 Act and the 1934 Act and the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of the
Company and the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a specified date
not more than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim financial
statements of the Company and its consolidated subsidiaries included or
18
<PAGE>
incorporated by reference in the Registration Statement and Prospectus
and reading the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and Prospectus
to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding the
specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration
Statement and Prospectus, for them to be in conformity with
generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis as compared with the
amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more
than five business days prior to the delivery of such letter,
there was any change in the capital stock or the long-term
debt (other than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all instances
for changes or decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or Price
Waterhouse LLP shall state any specific changes or decreases.
(iv) The letter shall also state that Price Waterhouse LLP has
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Representatives and agreed to by Price Waterhouse LLP, and has found
such amounts, percentages and
19
<PAGE>
financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries
identified in such letter.
In addition, at the time this Agreement is executed, Price
Waterhouse LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
subsection 9.
(10) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Capital
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors, in connection with the issuance and sale of the Capital
Securities as herein contemplated shall be satisfactory in form and substance to
the Representatives and Stroock & Stroock & Lavan, counsel for the Underwriters.
(11) At Closing Time, at least one "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 1933 Act), has rated the Capital Securities in one of its four highest
rating categories and there shall not have occurred any decrease in the ratings
of any of the securities of the Company or of the Capital Securities by any
nationally recognized statistical rating organization, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of any of the Company's securities or any of the Capital Securities for a
possible downgrade.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Offerors, in
writing or by telephone or telegraph confirmed in writing, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 6, and 7 shall survive any such termination and will remain in full
force and effect.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter and each of its partners, officers, directors,
and employees and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act or the 1934 Act against any losses, claims, damages or
liabilities, and any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and sales of
the Capital Securities), joint or several, which arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Registration Statement, or any amendment or supplement
thereto, including information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations, if applicable, (B) the
Prospectus and any amendment or supplement thereto, or (C) any application or
other document,
20
<PAGE>
any amendment or supplement thereto, executed by the Offerors or based upon
information furnished by or on behalf of the Offerors filed in any jurisdiction
in order to qualify the Capital Securities under the securities or blue sky laws
thereof (each, an "Application") or (ii) the omission or alleged omission to
state in the Registration Statement, or any amendment or supplement thereto, the
Prospectus or any amendment or supplement thereto, or any Application, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse as incurred each Underwriter and
each such controlling person for any legal and other expenses incurred in
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that neither of the Offerors shall be liable to
any Underwriter in any such case to the extent that any such loss, claim, damage
or liability arises out of, or is based upon, any untrue statement or alleged
untrue statement made in the Prospectus, including any amendment or supplement
thereto, in reliance upon and in conformity with information furnished in
writing to the Offerors by or on behalf of such Underwriter specifically for
inclusion and actually included therein; and provided further that, as to any
Prospectus that has been amended or supplemented as provided herein, this
indemnity agreement shall not inure to the benefit of any Underwriter, on
account of any loss, claim, damage, liability or action arising out of the sale
of Capital Securities to any person by such Underwriter if (A) such Underwriter
failed to send or give a copy of the final Prospectus as so amended or
supplemented to that person at or prior to the confirmation of the sale of such
Capital Securities to such person in any case where such delivery is required by
the 1933 Act, and (B) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in any
preliminary Prospectus was corrected in an amendment or supplement thereto (but
only if the sale to such person occurred after the Offerors provided such
Underwriter and the Underwriter received copies of such amendment or supplement
for distribution). This indemnity agreement will be in addition to any liability
which the Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, the Trust, the Trustees and each of the
Company's directors, each of its officers and each person, if any, who controls
the Company or the Trust within the meaning of the 1933 Act or the 1934 Act, to
the same extent as the foregoing indemnity from the Offerors to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Offerors by such Underwriter and specifically
included in the Prospectus. This indemnity shall be in addition to any liability
which such Underwriter may otherwise have. [The Offerors acknowledge that the
statements set forth in the last paragraph of the cover page (p. S-4) and under
the heading "Underwriting" or "Plan of Distribution" in the Prospectus
constitute the only information furnished in writing by the several Underwriters
for inclusion in the Prospectus.]
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against one or more
indemnifying parties under this Section 6, notify such indemnifying party or
parties of the commencement thereof; but the omission so to notify the
indemnifying party or parties will not relieve it or them from any liability
which it or they may have to any indemnified party otherwise than under
subsection (a) or (b) of this Section 6 or to the extent that
21
<PAGE>
the indemnifying party was not adversely affected by such omission. In case any
such action is brought against an indemnified party and it notifies an
indemnifying party or parties of the commencement thereof, the indemnifying
party or parties against which a claim is to be made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the lead Underwriter in the case of
paragraph (a) of this Section 6, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions), or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, which will not be unreasonably withheld, unless such indemnified party
waived its rights under this Section 6 in writing in which case the indemnified
party may effect such a settlement without such consent.
(d) The Company agrees to indemnify the Trust against all
losses, claims, damages or liabilities due from the Trust under Section 6(a)
hereof.
(e) If the indemnification provided for in the preceding
paragraphs of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party under paragraph (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the Offerors or the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Offerors and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the total discounts and/or commissions received by the
Underwriters bears to the sum of such discounts and/or commissions and the
purchase price of the Capital Securities specified in Schedule B hereto and the
Offerors are responsible for the balance; provided,
22
<PAGE>
however, that (y) in no case shall any Underwriter (except as may be provided in
any agreement among Underwriters relating to the offering of the Capital
Securities) be responsible for any amount in excess of the total discounts
and/or commissions received by it with respect to the Capital Securities
purchased by such Underwriter under this Agreement and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 6, each person
who controls an Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person who controls
either of the Offerors within the meaning of either the 1933 Act or the 1934
Exchange Act, each officer or trustee of the Offerors who shall have signed the
Registration Statement and each director or trustee of the Offerors shall have
the same rights to contribution as the Offerors, subject in each case to clause
(y) of this paragraph (e). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (e), notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (e).
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers or Trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors and shall survive
delivery of the Capital Securities to the Underwriters.
SECTION 8. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by
notice to the Offerors, at any time at or prior to Closing Time (i) if there has
been, since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business affairs
of the Trust or the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Capital Securities or to enforce
contracts for the sale of the Capital Securities, (iii) if trading in any
securities of the Company or the Trust has been suspended or materially limited
by the Commission or the applicable exchange, or if trading generally on the New
York Stock Exchange, the American Stock Exchange or on the NASDAQ National
Market, has been suspended, limited or restricted or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by said exchanges or such
23
<PAGE>
system or by order of the Commission, the NASD or any governmental authority,
(iv) if a banking moratorium has been declared by either federal, New York,
North Carolina or Delaware authorities, or (v) if there has been any decrease in
the ratings of any of the securities of the Company or of the Capital Securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933 Act) or if any such organization shall
have publicly announced that it has under surveillance or review its rating of
any of the Company's securities or any of the Capital Securities for possible
downgrade.
(b) If this Agreement is terminated pursuant to this Section
8, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and except that Sections 1, 6, and 7
shall survive any such termination and will remain in full force and effect.
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Capital
Securities that it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Capital Securities each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Capital Securities this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Offerors shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to them at [address]; notices to the Trust, and
the Company shall be directed to them at NationsBank Corporation,
24
<PAGE>
NationsBank Corporate Center, 100 North Tryon Street, Charlotte, N.C. 28255,
attention of John E. Mack, Senior Vice President and Treasurer.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Trust, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and the Company and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Trust and the Company and their respective successors, and said controlling
persons and officers, directors and trustees and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Capital Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 13. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
25
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:_______________________
Name:
Title: Vice President
NB CAPITAL TRUST __
By:________________________
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
[UNDERWRITERS]
For themselves and as Representatives
of the several Underwriters named in
Schedule A hereto.
By: [Underwriters]
By:
Name:
Title:
26
<PAGE>
SCHEDULE A
===============================================================================
NUMBER OF CAPITAL
NAME OF UNDERWRITER SECURITIES
---------------------------
===========================
27
<PAGE>
SCHEDULE B
================================================================================
Underwriting Agreement dated _______ __, 1996
Registration Statement No. 333-
Underwriters:
Address of Underwriters: c/o
Title, Purchase Price and Description of Securities:
Title: ____% Capital Trust Securities
1. The initial public offering price per security for the
Capital Securities, determined as provided in said Section 2, shall be
$_____.
2. The purchase price per security for the Capital Securities
to be paid by the several Underwriters shall be $_____, being an amount
equal to the initial public offering price set forth above.
3. The compensation per Capital Securities to be paid by the
Company to the several Underwriters in respect of their commitments
hereunder shall be $_____.
28
<PAGE>
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital Trust IV,
desiring to form a business trust pursuant to Delaware Business
Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
i. The name of the business trust being formed
hereby (the "Trust") is "NB Capital Trust
IV."
ii. The name and business address of the trustee
of the Trust which has its principal place of
business in the State of Delaware is as fol
lows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
iii. This Certificate of Trust shall be effective
as of the date of filing.
Dated: December 12, 1996
/s/ JOHN E. MACK
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By:/s/ JOSEPH G. ERNST
Name: Joseph G. Ernst
Title: Assistant Vice President
<PAGE>
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital Trust V,
desiring to form a business trust pursuant to Delaware Business
Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
i. The name of the business trust being formed
hereby (the "Trust") is "NB Capital Trust V."
ii. The name and business address of the trustee
of the Trust which has its principal place of
business in the State of Delaware is as fol
lows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
iii. This Certificate of Trust shall be effective
as of the date of filing.
Dated: December 12, 1996
/s/ JOHN E. MACK
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By:/s/ JOSEPH G. ERNST
Name: Joseph G. Ernst
Title: Assistant Vice President
<PAGE>
================================
DECLARATION OF TRUST
NB CAPITAL TRUST IV
Dated as of December 12, 1996
================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.......................................................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name..............................................................................4
SECTION 2.2 Office............................................................................4
SECTION 2.3 Purpose...........................................................................4
SECTION 2.4 Authority.........................................................................4
SECTION 2.5 Title to Property of the Trust....................................................4
SECTION 2.6 Powers of the Trustees............................................................4
SECTION 2.7 Filing of Certificate of Trust....................................................6
SECTION 2.8 Duration of Trust.................................................................6
SECTION 2.9 Responsibilities of the Sponsor...................................................6
SECTION 2.10 Declaration Binding on Securities Holders.........................................7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees..........................................................................7
SECTION 3.2 Regular Trustees..................................................................7
SECTION 3.3 Delaware Trustee..................................................................8
SECTION 3.4 Property Trustee..................................................................8
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration....................................................................8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.......................................................................8
SECTION 4.2 Fiduciary Duty....................................................................9
SECTION 4.3 Indemnification..................................................................10
SECTION 4.4 Outside Businesses...............................................................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.......................................................................14
SECTION 5.2 Termination of Trust.............................................................14
SECTION 5.3 Governing Law....................................................................15
SECTION 5.4 Headings.........................................................................15
SECTION 5.5 Successors and Assigns...........................................................15
SECTION 5.6 Partial Enforceability...........................................................15
SECTION 5.7 Counterparts.....................................................................15
</TABLE>
i
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DECLARATION OF TRUST
OF
NB CAPITAL TRUST IV
December 12, 1996
THIS DECLARATION OF TRUST ("Declaration") dated and effective
as of December 12, 1996 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer (as defined herein); and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout unless otherwise specified;
(c) all references to "the Declaration" or "this Declara-
tion" are to this Declaration of Trust as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sec-
tions are to Articles and Sections of this Declaration
unless otherwise specified; and
<PAGE>
(e) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York and Charlotte, North Carolina are authorized
or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commis-
sion.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company" means NationsBank Corporation, a North Carolina
corporation or any successor entity in a merger.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section
3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of November 27, 1996
between the Company and the Note Trustee and any inden-
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ture supplemental thereto, or any other replacement or alternate indenture,
pursuant to which the Notes are to be issued.
"Property Trustee" has the meaning set forth in Section
3.4.
"Note Issuer" means the Company in its capacity as the
issuer of the Notes under the Indenture.
"Notes" means the series of Notes to be issued by the
Note Issuer and acquired by the Trust.
"Note Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing a preferred
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Property Trustee (as hereinafter defined).
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Company in its capacity as sponsor
of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "NB Capital
Trust IV." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
NationsBank Corporation, Corporate Treasury Division, NationsBank Corporate
Center, Charlotte, North Carolina 28255. At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the proceeds from such sale to acquire the
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person shall
be required to inquire into the authority of the Regular Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Pre-
ferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a regis-
tration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) to determine whether to list securities and to
execute and file an application, prepared by the Sponsor, to
the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a reg-
istration statement on Form 8-A, if required, including any
amendments thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into an underwriting
agreement providing for the sale of the Preferred Secu-
rities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and manag-
5
<PAGE>
ers, contractors, advisors, and consultants and provide for reasonable
compensation for such services;
(d) to incur expenses which are necessary or inciden-
tal to carry out any of the purposes of this Declaration;
and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A to be filed with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for 55 years from December 1, 1996.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Com-
mission a registration statement on Form S-3 in relation to
the Preferred 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 Preferred
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 an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission
any required registration statement on Form 8-A re-
6
<PAGE>
lating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting agree-
ment providing for the sale of the Preferred Securities.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be two, and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
the number of Trustees shall in no event be less than two; provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Company (a "Regular
Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustee shall be:
John E. Mack
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6 provided, that, the
registration statement referred to in Section 2.6(b), including any
7
<PAGE>
amendments thereto, shall be signed by a majority of the
Regular Trustees then holding office; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Regular Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property Trustee")
meeting the requirements of an eligible trustee of the Trust Indenture Act of
1939, as amended, by the execution of an amendment to this Declaration executed
by the Regular Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
9
<PAGE>
(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 Indem-
nified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) 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), judg-
ments, 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
10
<PAGE>
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.
(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 or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or
the court in which such 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.
(ii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iii) Any indemnification under paragraphs (i), (ii)
and (iii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the
specific case upon a determination
11
<PAGE>
that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees
who were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if obtainable, if
a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the
Common Security holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Note Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security
holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or
12
<PAGE>
disinterested directors of the Note Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under
this Section 4.3(a) shall be deemed to be provided by a
contract between the Note Issuer and each Company Indemnified
Person who serves in such capacity at any time while this
Section 4.3(a) is in effect. Any repeal or modification of
this Section 4.3(a) shall not affect any rights or obliga-
tions then existing.
(vi) The Note Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Note
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), refer-
ences to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 4.3(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Note Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each
13
<PAGE>
Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Regular Trustees and the Sponsor.
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<PAGE>
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of disso-
lution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor's charter or of the
Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dis-
solution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the
Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), and after satisfaction of all obligations of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the appli-
cation of such provision to any Person or circumstance, shall be
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held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
16
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be executed as of the day and year first above written.
/s/ JOHN E. MACK
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By:/s/JOSEPH G. ERNST
Name: Joseph G. Ernst
Title: Assistant Vice President
NATIONSBANK CORPORATION, as Sponsor
By:/s/ E. JEFFERY COUCH
Name: E. Jeffery Couch
Title: Senior Vice President
17
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital Trust IV,
esiring to form a business trust pursuant to Delaware Business
Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
(a) The name of the business trust being formed
hereby (the "Trust") is "NB Capital Trust
IV."
(b) The name and business address of the
trustee of the Trust which has its princi-
pal place of business in the State of Dela-
ware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effec-
tive as of the date of filing.
Dated: December 12, 1996
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By:
Name:
Title: Vice President
18
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================================
DECLARATION OF TRUST
NB CAPITAL TRUST V
Dated as of December 12, 1996
================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions............................................................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name...................................................................................4
SECTION 2.2 Office.................................................................................4
SECTION 2.3 Purpose................................................................................4
SECTION 2.4 Authority..............................................................................4
SECTION 2.5 Title to Property of the Trust.........................................................4
SECTION 2.6 Powers of the Trustees.................................................................4
SECTION 2.7 Filing of Certificate of Trust.........................................................6
SECTION 2.8 Duration of Trust......................................................................6
SECTION 2.9 Responsibilities of the Sponsor........................................................6
SECTION 2.10 Declaration Binding on Securities Holders..............................................7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees...............................................................................7
SECTION 3.2 Regular Trustees.......................................................................7
SECTION 3.3 Delaware Trustee.......................................................................8
SECTION 3.4 Property Trustee.......................................................................8
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration....................................................................8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation............................................................................8
SECTION 4.2 Fiduciary Duty.........................................................................9
SECTION 4.3 Indemnification.......................................................................10
SECTION 4.4 Outside Businesses....................................................................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments............................................................................14
SECTION 5.2 Termination of Trust..................................................................14
SECTION 5.3 Governing Law.........................................................................15
SECTION 5.4 Headings..............................................................................15
SECTION 5.5 Successors and Assigns................................................................15
SECTION 5.6 Partial Enforceability................................................................15
SECTION 5.7 Counterparts..........................................................................15
</TABLE>
i
<PAGE>
DECLARATION OF TRUST
OF
NB CAPITAL TRUST V
December 12, 1996
THIS DECLARATION OF TRUST ("Declaration") dated and effective
as of December 12, 1996 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer (as defined herein); and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions .
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout unless otherwise specified;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and Sections are
to Articles and Sections of this Declaration unless otherwise
specified; and
<PAGE>
(e) a reference to the singular includes the
plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York and Charlotte, North Carolina are authorized
or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company" means NationsBank Corporation, a North Carolina
corporation or any successor entity in a merger.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of November 27, 1996
between the Company and the Note Trustee and any inden-
2
<PAGE>
ture supplemental thereto, or any other replacement or alternate indenture,
pursuant to which the Notes are to be issued.
"Property Trustee" has the meaning set forth in Section 3.4.
"Note Issuer" means the Company in its capacity as the issuer
of the Notes under the Indenture.
"Notes" means the series of Notes to be issued by the Note
Issuer and acquired by the Trust.
"Note Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing a preferred
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Property Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Company in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name .
The Trust created by this Declaration is named "NB Capital
Trust V." The Trust's activities may be conducted under the name of the Trust or
any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office .
The address of the principal office of the Trust is c/o
NationsBank Corporation, Corporate Treasury Division, NationsBank Corporate
Center, Charlotte, North Carolina 28255. At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose .
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the proceeds from such sale to acquire the
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority .
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person shall
be required to inquire into the authority of the Regular Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the
Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees .
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) to determine whether to list securities and to
execute and file an application, prepared by the Sponsor, to
the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, if required, including any
amendments thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into an underwriting agreement
providing for the sale of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and manag-
5
<PAGE>
ers, contractors, advisors, and consultants and provide for
reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust .
On or after the date of execution of this Declaration, the
Trustees shall cause the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A to be filed with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for 55 years from December 1, 1996.
SECTION 2.9 Responsibilities of the Sponsor .
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
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 an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission any
required registration statement on Form 8-A re-
6
<PAGE>
lating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement
providing for the sale of the Preferred Securities.
SECTION 2.10 Declaration Binding on Securities Holders .
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees .
The number of Trustees initially shall be two, and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
the number of Trustees shall in no event be less than two; provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Company (a "Regular
Trustee").
SECTION 3.2 Regular Trustees .
The initial Regular Trustee shall be:
John E. Mack
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6 provided, that, the
registration statement referred to in Section 2.6(b), including any
7
<PAGE>
amendments thereto, shall be signed by a majority of the Regular
Trustees then holding office; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Regular Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee .
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property Trustee")
meeting the requirements of an eligible trustee of the Trust Indenture Act of
1939, as amended, by the execution of an amendment to this Declaration executed
by the Regular Trustees, the Sponsor, the Property Trustee and the Delaware
Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation .
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty .
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Declaration shall not
be liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification .
(a) The Note Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to
any criminal
10
<PAGE>
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.
(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 or suit
by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect
of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such 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.
(ii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iii) Any indemnification under paragraphs (i), (ii)
and (iii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the
specific case upon a determination
11
<PAGE>
that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees
who were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if obtainable, if
a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the
Common Security holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Note Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security
holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or
12
<PAGE>
disinterested directors of the Note Issuer or Preferred
Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under
this Section 4.3(a) shall be deemed to be provided by a
contract between the Note Issuer and each Company Indemnified
Person who serves in such capacity at any time while this
Section 4.3(a) is in effect. Any repeal or modification of
this Section 4.3(a) shall not affect any rights or obligations
then existing.
(vi) The Note Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Note
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), references
to "the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(viii) The indemnification and advancement
of expenses provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Note Issuer agrees to indemnify (i) the
Delaware Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii)
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each
13
<PAGE>
Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
SECTION 4.4 Outside Businesses .
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments .
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Regular Trustees and the Sponsor.
14
<PAGE>
SECTION 5.2 Termination of Trust .
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor or the
revocation of the Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the
consent of all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), and after satisfaction of all obligations of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law .
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings .
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns .
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability .
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be
15
<PAGE>
held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 5.7 Counterparts .
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
16
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be executed as of the day and year first above written.
/s/ JOHN E. MACK
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee
By:/s/ JOSEPH G. ERNST
Name: Joseph G. Ernst
Title: Assistant Vice President
NATIONSBANK
CORPORATION, as Sponsor
By: /s/ E. JEFFERY COUCH
Name: E. Jeffery Couch
Title: Senior Vice President
17
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital Trust V, esiring
to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. ss.
3810, hereby certify as follows:
(a) The name of the business trust being
formed hereby (the "Trust") is "NB Capital
Trust V."
(b) The name and business address of the trustee
of the Trust which has its principal place of
business in the State of Delaware is as
follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be
effective as of the date of filing.
Dated: December 12, 1996
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as Trustee
By:
Name:
Title: Vice President
18
<PAGE>
AMENDED AND RESTATED DECLARATION
OF TRUST
NB CAPITAL TRUST ___
Dated as of _______________, 199__
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1 Definitions.....................................................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application...............................................................10
SECTION 2.2 Lists of Holders of Securities.................................................................10
SECTION 2.3 Reports by the Property Trustee................................................................11
SECTION 2.4 Periodic Reports to Property Trustee...........................................................11
SECTION 2.5 Evidence of Compliance with Conditions
Precedent......................................................................................11
SECTION 2.6 Events of Default; Waiver......................................................................11
SECTION 2.7 Event of Default or Nonpayment Notice..........................................................13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name...........................................................................................14
SECTION 3.2 Office.........................................................................................14
SECTION 3.3 Purpose........................................................................................14
SECTION 3.4 Authority......................................................................................14
SECTION 3.5 Title to Property of the Trust.................................................................15
SECTION 3.6 Powers and Duties of the Regular Trustees......................................................15
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.......................................................................................18
SECTION 3.8 Powers and Duties of the Property Trustee......................................................19
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee...............................................................................21
SECTION 3.10 Certain Rights of Property Trustee.............................................................24
SECTION 3.11 Delaware Trustee...............................................................................27
SECTION 3.12 Execution of Documents.........................................................................27
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.....................................................................................27
SECTION 3.14 Duration of Trust..............................................................................27
SECTION 3.15 Mergers........................................................................................27
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities........................................................29
SECTION 4.2 Responsibilities of the Sponsor................................................................29
SECTION 4.3 Covenants of the Sponsor.......................................................................30
i
<PAGE>
Page
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.............................................................................31
SECTION 5.2 Qualifications of Delaware Trustee.............................................................31
SECTION 5.3 Property Trustee; Eligibility..................................................................32
SECTION 5.4 Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.....................................................................33
SECTION 5.5 Regular Trustees...............................................................................33
SECTION 5.6 Appointment of Delaware Trustee................................................................33
SECTION 5.7 Appointment, Removal and Resignation of
Trustees.......................................................................................34
SECTION 5.8 Vacancies among Trustees.......................................................................35
SECTION 5.9 Effect of Vacancies............................................................................35
SECTION 5.10 Meetings.......................................................................................36
SECTION 5.11 Delegation of Power............................................................................36
SECTION 5.12 Merger, Conversion, Consolidation or
Succession to Business.........................................................................37
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions..................................................................................37
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities........................................................38
SECTION 7.2 Paying Agent...................................................................................39
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust...........................................................................39
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.........................................................................40
SECTION 9.2 Transfer of Certificates.......................................................................41
SECTION 9.3 Deemed Security Holders........................................................................42
SECTION 9.4 Book-Entry Interests...........................................................................42
SECTION 9.5 Notices to Clearing Agency.....................................................................43
SECTION 9.6 Appointment of Successor Clearing Agency.......................................................43
SECTION 9.7 Definitive Capital Security Certificates.......................................................43
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates...................................................................................44
ii
<PAGE>
Page
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability......................................................................................45
SECTION 10.2 Exculpation....................................................................................45
SECTION 10.3 Fiduciary Duty.................................................................................46
SECTION 10.4 Indemnification................................................................................47
SECTION 10.5 Outside Businesses.............................................................................50
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year....................................................................................51
SECTION 11.2 Certain Accounting Matters.....................................................................51
SECTION 11.3 Banking........................................................................................52
SECTION 11.4 Withholding....................................................................................52
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.....................................................................................53
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent.............................................................................55
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee........................................................................................57
SECTION 13.2 Representations and Warranties of Delaware
Trustee........................................................................................58
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices........................................................................................58
SECTION 14.2 Governing Law..................................................................................60
SECTION 14.3 Intention of the Parties.......................................................................60
SECTION 14.4 Headings.......................................................................................60
SECTION 14.5 Successors and Assigns.........................................................................60
SECTION 14.6 Partial Enforceability.........................................................................60
SECTION 14.7 Counterparts; Acceptance.......................................................................60
ANNEX I TERMS OF SECURITIES............................................................I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE............................................... A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE................................................ A2-1
</TABLE>
iii
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
<S> <C>
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(a)
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 inter pretation of any of its terms or
provisions.
</TABLE>
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NB CAPITAL TRUST ___
_____________, 199__
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of ________________, 19__ 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 NB CAPITAL
TRUST ___ (the "Trust"), a trust under the Business Trust Act (as defined
herein) pursuant to a Declaration of Trust dated as of _____________, 19__, (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on _____________, 19__, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the gross proceeds thereof in
certain 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.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(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 and Exhibits A and B shall be a part of this
Declaration;
(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 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.
"Adjusted Treasury Rate" shall mean, with respect to any Note
prepayment date, the Treasury Rate (as defined in the Indenture) plus (i) ____%
if such prepayment date occurs on or before ______________ or (ii) ____% if such
prepayment date occurs after _____________.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any 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 Certificate, ownership and transfers of which shall be
2
<PAGE>
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 ss.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 the terms of which are further
described in Annex I hereto.
"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.
"Capital Securities Guarantee" means the guarantee agreement
to be dated as of ____________, 19__, of the Sponsor in respect of the Capital
Securities.
"Capital Treatment Event" has the meaning set forth in
Annex I hereto.
"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 Certificate 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.
3
<PAGE>
"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" has the meaning specified in
Section 7.1.(a).
"Common Securities Guarantee" means the guarantee agreement to
be dated as of ____________, 199__, 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.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any 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
5.2.
"Depositary" means The Depository Trust Company or any
successor Clearing Agency.
"Direct Action" has the meaning specified in Section
3.8(e).
4
<PAGE>
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"ERISA Plan" means (i) an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended, (ii)
the assets of an individual retirement account or plan subject to Section 4975
of the Code, or (iii) any entity in which such plan invests whose assets are
deemed "plan assets."
"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 Certificate
representing a Security is registered, 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.
"Indenture" means collectively the Indenture dated as of
November 27, 1996, between the Note Issuer and the Note Trustee and any board
resolution or supplemental indenture pursuant to which the Notes are to be
issued.
"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" has the meaning set forth in
Annex I.
"Legal Action" has the meaning set forth in Section
3.6(g).
5
<PAGE>
"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.
"Note Issuer" means NationsBank Corporation, a North Carolina
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.
"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;
(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
6
<PAGE>
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.
"Optional Prepayment Price" shall mean
- -----------------.
"Optional Redemption Price" shall mean, 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 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.
"Pro Rata" has the meaning set forth in Annex I hereto.
"Property Trustee" means the Trustee 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.
"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.
7
<PAGE>
"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.
"__________ Supplemental Indenture" means the __________
Supplemental Indenture to be dated as of ____________, 199__ among the Note
Issuer and the Note Trustee.
"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 Redemption" has the meaning set forth in
Annex I hereto.
"Special Event Prepayment Price" shall mean
- --------------------.
"Special Event Redemption Price" shall mean, a redemption
price equal to the Special Event Prepayment Price.
"Sponsor" means NationsBank Corporation, a North Carolina
corporation, or any successor entity in a merger or consolidation, in its
capacity as sponsor of the Trust.
"Stated Maturity" shall mean ____________, 20__ the date on
which the Notes shall mature, unless previously prepaid or redeemed.
"Successor Delaware Trustee" has the meaning set forth
in Section 5.7(b).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
8
<PAGE>
"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).
"Tax Event" has the meaning set forth in Annex I
hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Capital Securities or Holders of out
standing 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 Capital Securities and related Capital Securities
Guarantees among the Sponsor, the Trust and the Underwriters named therein.
9
<PAGE>
ARTICLE II
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
ss.ss. 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 14 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 14 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.
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(b) The Property Trustee shall comply with its obligations
under ss.ss. 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 ss. 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by ss. 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of ss. 313(d) of the Trust Indenture
Act.
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 ss. 314 (if any) and the compliance certificate
required by ss. 314 of the Trust Indenture Act in the form, in the manner and
at the times required by ss. 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 ss. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to ss.
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 also 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
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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 ss.
316(a)(1)(B) of the Trust Indenture Act and such ss. 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 shall also 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 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 a Super
Majority to be waived, 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 may only 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
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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 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 ss.ss. 316(a)(1)(A) and 3 16(a)(1)(B) of the
Trust Indenture Act and such ss.ss. 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, 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 ss. 316(a)(1)(B) of the Trust Indenture Act and
such ss. 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
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:
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(i) an Event of Default under Section 5.01 of
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 III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "NB Capital Trust ___," 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
NationsBank Corporation, Attention: Corporate Treasury, NationsBank Corporate
Center, 100 North Tryon Street, 23rd Floor, Charlotte, North Carolina 28255. On
10 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
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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 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 securities
and to execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any
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other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Capital Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, if required, including
any amendments thereto, prepared by the Sponsor, relating to
the registration of the Capital Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Underwriting
Agreement providing for the sale of the Capital
Securities;
(c) to acquire the Notes with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that
the Regular Trustees shall cause legal title to the Notes to be held of
record in the name of the Property Trustee for the benefit of the
Holders of the Capital Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided that the
Regular Trustees shall consult with the Sponsor and the Property
Trustee before taking or refraining from taking any Ministerial Action
in relation to 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 ss.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"), unless pursuant to Section 3.8(e),
the Property Trustee has the exclusive power to bring such 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;
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(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by ss. 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 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,
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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:
(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;
(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;
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(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 Amended and
Restated 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 insub-
stantial 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-in-
terest 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. Any accrued Distributions paid by the purchaser of any
Additional Securities shall be deposited in the
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Property Trustee Account. 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 on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the
Capital 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 redeemed 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 certain
special events (as may be defined in the terms of the
Securities) 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.
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(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 Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
securities and any such Paying Agent shall comply with ss. 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.
(j) The Property Trustee shall have the right to
appoint a Quotation Agent (as defined in the Indenture).
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
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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 De fault
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 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 Re-
sponsible Officer of the Property Trustee, unless it
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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 re-
sponsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties
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under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Regular Trustees
or the Sponsor.
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, 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 admin-
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istration 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 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 and the Property 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 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;
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(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 or 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 right, power, duty or obligation. No permissive power
or authority available to the Property Trustee shall be construed to be
a duty.
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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
ss. 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 December 1, 1996.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, 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,
merge with or into, or be replaced by
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a trust organized as such under the laws of any State;
provided that:
(i) if the Trust is not the survivor, such
successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obli-
gations 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 securities
exchange or with another organization, if any, on which the
Capital Securities are then listed or quoted;
(iv) such merger, consolidation 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 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 iden-
tical to that of the Trust;
(vii) prior to such merger, consolidation 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:
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(A) such merger, consolidation or re
placement 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
or replacement, neither the Trust nor the Successor
Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation
or replacement, the Trust (or the Successor Entity)
will continue to be 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, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, merge with or
into, or replace it if such consolidation, merger 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 IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the
Common Securities issued by the Trust, in an amount at least equal to __% of the
capital of the Trust, at the same time as the Capital Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
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(a) to prepare for filing by the Trust with the Com-
mission 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 an
application to the New York Stock Exchange or any other national 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
any required registration statement 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
(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 Trust Securities to be treated as owning an undivided
beneficial ownership interest in the assets of the Trust.
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ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees of this Trust shall be five, and:
(a) at any time before the issuance of any Securi-
ties, 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, one Trustee (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,
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.
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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 ss. 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 ss. 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions
of ss. 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.
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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 be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.5 Regular Trustees.
As of the date of this Declaration, the Regular Trustees shall
be:
John E. Mack
William L. Maxwell
Marc D. Oken
(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).
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SECTION 5.7 Appointment, Removal and Resignation of
Trustees.
(a) Except during an Event of Default and 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.
(b) (i) the Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until 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 Trustee that acts as Delaware Trustee
shall not be removed in accordance with this 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") 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 Trustee that
acts as 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
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(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 Trustee that acts
as 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.
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, bank-
ruptcy, dissolution, liquidation, incompetence or incapacity to
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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
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(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 or Succession
to Business.
Any corporation 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 corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation 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 corporation
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 VI
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.
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ARTICLE VII
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 as Annex I (the
"Capital Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such
terms as are set forth in a completed designation of Terms in the form
attached as Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Capital Securities and the Common Securities.
(b) The Securities are subject to redemption as
provided in Annex I.
(c) 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.
(d) 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.
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(e) 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.
(f) 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.
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 appoint the Paying Agent and may appoint one or more additional paying
agents in such other locations as it shall determine. 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 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 Trust shall initially act as Paying Agent for the Capital Securities
and the Common Securities.
ARTICLE VIII
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 disso-
lution 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 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;
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(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 endorsed thereon 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.
ARTICLE IX
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, Capital Securities shall be
freely transferable. Notwithstanding the foregoing, Capital Securities
may not be acquired by any Person who is, or who in acquiring such
Capital Securities is using the assets of, an ERISA Plan unless one of
the following class exemptions or another applicable exemption is
available to the ERISA Plan: (i) Prohibited Transaction Class Exemption
90-1 ("PTE 90-1"), regarding investments by insurance company pooled
separate accounts, (ii) Prohibited Transaction Class Exemption 91-38
("PTE 91-38") regarding investments by bank collective investment
funds, (iii) Prohibited Transaction Class Exemption 84-14 ("PTE
84-14"),
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regarding transactions effected by qualified professional asset
managers, (iv) Prohibited Transaction Class Exemption 96-23 ("PTE
96-23"), regarding transactions effected by in-house asset managers, or
(v) Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"),
regarding investments by insurance company general accounts. The
acquisition of Capital Securities by any Person who is, or who in
acquiring such Capital Securities is using the assets of, an ERISA Plan
shall be deemed to constitute a representation by such Person to the
Trust that (i) such Person is eligible for exemptive relief available
pursuant to either one of PTE 90-1, PTE 91-38, PTE 84-14, PTE 96-23,
PTE 95-60 or another applicable exemption with respect to the
acquisition and holding of such Capital Securities, and (ii) neither
the Sponsor nor the Trust is a "fiduciary", within the meaning of
Section 3(21) of ERISA and the regulations thereunder, with respect to
such Person's interest in the Capital Securities or the Notes.
(c) 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; provided that, 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 Certifi-
cate, 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 Certifi-
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cate 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.
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 (each a "Global Security"), to be delivered to DTC, the initial
Clearing Agency, 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 DTC, 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 Holder of the Capital
Securities and the sole holder of the Global 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
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(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. DTC 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.
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,
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the Regular Trustees shall cause Definitive 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 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.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declara-
tion, 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 ss. 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 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
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amount of assets from which Distributions to Holders of Securities
might properly be paid.
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 Indem-
nified 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
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interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 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
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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 Common
Security Holder of the Trust.
(v) Expenses (including 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 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
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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 its
Common or Capital Security Holders.
(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 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).
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(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 and the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Property Trustee and 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 or 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
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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 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 XI
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. The books of account
shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees;
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after
the end of each Fiscal Year of the Trust, annual financial statements
of the Trust, including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income or loss;
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(c) 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. Not-
withstanding any right under the Code to deliver any such statement at
a later date, the Regular Trustees shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the
Trust; and
(d) 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.
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 claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to
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be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
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, pow-
ers, 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:
(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 Se-
curities); 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
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terms of this Declaration (including the terms
of the Securities); and
(iii) to the extent the result of such amend-
ment 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 con-
travention 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 Declara-
tion 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;
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(iv) to 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, 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) to modify, eliminate and add to any provision
of the Amended 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
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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 nece-
ssary 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;
(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 Securi-
ties 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 Decla-
ration, 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
provides, 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
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notice, action by consent without a meeting, the estab-
lishment 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 XIII
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 New York banking corporation
with trust powers and 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 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.
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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 power and 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.
(d) The Delaware Trustee is an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV
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:
(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):
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NB Capital Trust ___
c/o NationsBank Corporation
Attention: Corporate Treasury
NationsBank Corporate Center
100 North Tryon Street, 23rd Floor
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 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):
NationsBank Corporation
NationsBank Corporate Center
100 North Tryon Street, 23rd Floor
Charlotte, North Carolina 28255
Attention: Treasurer
(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 other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given,
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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.
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Each Trustee, by its execution of a counterpart of this
Declaration, acknowledges and accepts its appointment as Trustee.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
----------------------------------
John E. Mack, as Regular Trustee
----------------------------------
William L. Maxwell, as Regular Trustee
----------------------------------
Marc D. Oken, as Regular Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
Name:
Title:
NATIONSBANK CORPORATION,
as Sponsor
By:
Name: Susan Y. Calton
Title: Vice President
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ANNEX I
NB CAPITAL TRUST ___
DESIGNATION OF TERMS OF
____% CAPITAL SECURITIES AND
____% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of ____________, 199__ (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 or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Capital Securities. ____________ Capital Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of $____________ and a liquidation amount with respect to the assets of
the Trust of $_____ per Capital Security, are hereby designated for the purposes
of identification only as "Capital Securities (the "Capital Securities"). 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. ___________ Common Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of $______________ and a liquidation amount with respect to the assets of
the Trust of $_________ per common security, are hereby designated for the
purposes of identification only as "Common Securities" (the "Common Securi-
ties"). 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.
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<PAGE>
2. Distributions.
(a) Distributions payable on each Security will be fixed at a
rate per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$_______ 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
semi-annual period will bear interest thereon compounded semi-annually 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 for any full semi-annual Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full semi-annual
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will
accrue from ____________, 199__ and will be payable semi-annually in arrears, on
__________ and __________ of each year, commencing on ________, 199_, 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 ___ consecutive
semi-annual periods (each an "Extension Period"), during which Extension Period
no interest shall be due and payable on the Notes, provided that no Extension
Period shall last beyond the Stated Maturity. As a consequence of such defer-
ral, Distributions will also be deferred on the Capital Securities for the same
period. Despite such deferral, semi-annual Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded semi-annually 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 ___ consecutive
semi-annual 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.
(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
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<PAGE>
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. Subject to any applicable
laws and regulations and the provisions of the Declaration, each such payment
in respect of the Capital Securities will be made as described under the heading
"Description of the Capital Securities -- Book-Entry Only Issuance -- The
Depository Trust Company" in the Prospectus Supplement dated ____________,
199__, to the Prospectus dated ___________, 199_ (together, the "Prospectus"),
of the Trust included in the Registration Statement on Form S-3 of the Sponsor,
the Trust and certain other business trusts. The relevant record 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 __________ and
__________ 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 $_____ per Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation
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<PAGE>
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. The
holders of the Common Securities will be entitled to receive distributions upon
any such dissolution Pro Rata with the holders of the Capital Securities, except
that if a Declaration 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 any time after
____________, 20__ and in certain circumstances, following the occurrence of a
Special Event as follows:
(i) Upon payment of the Notes at a payment price equal to the
principal amount of, plus accrued interest on the Notes at the Stated
Maturity, the proceeds from such payment shall be simultaneously
applied to redeem the Securities at the Maturity Redemption Price.
(ii) In the event of a Special Event Prepayment prior to
____________, 20__, the proceeds from such Special Event Prepayment
shall be simultaneously applied to redeem the Capital Securities at the
Special Event Redemption Price.
(iii) The Securities may also be redeemed in whole or in part on or
after ____________, 20__, 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(f)(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
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<PAGE>
the Property Trustee, having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to 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
certificate or certificates 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 interest rate
identical to the Coupon Rate of, 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.
(d) 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 semi-annual Distribution periods terminating on or before the
date of redemption.
(e) 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.
(f) 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 date fixed for
redemption or exchange thereof which, in the case of a redemption, will
be the date fixed for redemption of the Notes. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(f)(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 Redemp-
I-5
tion/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 thereof 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
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<PAGE>
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 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 calcu-
lating 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 Certificates 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 Annex
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
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<PAGE>
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
greater than 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 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.
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 in the Trust 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
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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 Annex 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 the requirements of the second to
last sentence of this para graph, the Holders of as 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 con ducting 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 may only give such consent
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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 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 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 disso-
I-10
lution, 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 on 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, a Declaration 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
I-11
<PAGE>
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 pari passu and payment thereon
shall be made pro rata with the Common Securities except that, where a
Declaration 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.
10. Listing.
Unless otherwise determined by the Regular Trustees Capital
Securities shall not be listed for quotation on any stock exchange.
11. 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.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
I-12
<PAGE>
13. 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.
Dated ____________, 199_.
NATIONSBANK CORPORATION
as Sponsor
By: ________________________________
Vice President
Accepted:
NB Capital Trust __
- ----------------------
Regular Trustee
I-13
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
This Capital Security is a Global Certificate 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 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 OR NONBANKING AFFILIATE OF NATIONSBANK
CORPORATION (EXCEPT TO THE EXTENT THAT IT IS GUARANTEED BY NATIONSBANK
CORPORATION AS DESCRIBED HEREIN) 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. _____________
Certificate Evidencing __________ Capital Securities
of
NB CAPITAL TRUST ___
__% Capital Securities
(liquidation amount $_____ per Capital Security)
A1-1
<PAGE>
NB CAPITAL TRUST ___, 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 $_____ 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 Restated Declaration of Trust of
the Trust dated as of ____________, 199__, 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 in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate as
of ____________, 199_.
NB CAPITAL TRUST ___
By:________________________________
Name:
Title: Regular Trustee
A1-2
<PAGE>
[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 $________ per Capital 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 semi-annual period will bear interest thereon
compounded semi-annually 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 for any full semi-annual Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full semi-annual Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
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 semi-annually in arrears on __________ and
__________ of each year, commencing on ____________, 199_ to the person in whose
name their 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 ____________ or
____________. 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 ___ consecutive semi-annual 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, semi-annual Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded semi-annually 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 __ consecutive
semi-annual 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.
A1-3
<PAGE>
---------------------
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 requirements of the
Registrar, which requirements include membership or partici-
pation 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 substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A1-4
<PAGE>
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 OR NONBANKING AFFILIATE OF NATIONSBANK
CORPORATION (EXCEPT TO THE EXTENT THAT IT IS GUARANTEED BY NATIONSBANK
CORPORATION AS DESCRIBED HEREIN) 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_____________
Certificate Evidencing ___________ Common Securities
of
NB CAPITAL TRUST ___
___% Common Securities
(liquidation amount $________ per Common Security)
NB CAPITAL TRUST ___, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
NATIONSBANK CORPORATION (the "Holder") is the registered owner of __________
common securities of the Trust
A2-1
<PAGE>
representing undivided beneficial interests in the assets of the Trust
designated the _____% Common Securities (liquidation amount $________ 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 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 __________ ___, 199_, 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
____________ __, 199_.
NB CAPITAL TRUST ___
By:________________________________
Name:
Title: Regular Trustee
A2-2
<PAGE>
[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 $________ per Common 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 semi-annual period will bear interest thereon compounded
semi-annually 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 for any full semi-annual Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
semi-annual Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
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 semi-annually in arrears on ____________ and
____________ of each year, commencing on ____________, 199_, 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 ___ consecutive
semi-annual 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, semi-annual Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
Coupon Rate compounded semiannually 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 __ consecutive
semi-annual 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.
A2-3
<PAGE>
---------------------
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 substi-
tution for, STAMP, all in accordance with the Securities and Exchange
Act of 1934, as amended.
A2-4
<PAGE>
====================================
________ SUPPLEMENTAL INDENTURE
between
NATIONSBANK CORPORATION
and
THE BANK OF NEW YORK
Dated as of _________ __, 199_
=====================================
<PAGE>
ARTICLE I
DEFINITIONS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1.1 Definition of Terms....................................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1 Designation and Principal Amount.......................................................6
SECTION 2.2 Maturity...............................................................................7
SECTION 2.3 Form and Payment.......................................................................7
SECTION 2.4 Global Form............................................................................7
SECTION 2.5 Interest...............................................................................9
ARTICLE III
PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment..............................................................10
SECTION 3.2 Optional Redemption by Company........................................................10
SECTION 3.3 No Sinking Fund.......................................................................11
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period..................................................11
SECTION 4.2 Notice of Extension...................................................................12
Section 4.3 Limitation of Transactions............................................................12
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses...................................................................13
Section 5.2 Payment Upon Resignation or Removal...................................................13
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange................................................................14
ARTICLE VII
FORM OF NOTE
SECTION 7.1 Form of Note..........................................................................14
i
<PAGE>
Page
ARTICLE VIII
ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes...............................................................21
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.............................................................21
SECTION 9.2 Trustee Not Responsible for Recitals..................................................21
SECTION 9.3 Governing Law.........................................................................21
SECTION 9.4 Separability..........................................................................22
SECTION 9.5 Counterparts..........................................................................22
</TABLE>
ii
<PAGE>
________ SUPPLEMENTAL INDENTURE
THIS ________ SUPPLEMENTAL INDENTURE, dated as of _________,
199_ (the "________ Supplemental Indenture"), between NATIONSBANK CORPORATION, a
North Carolina corporation (the "Company"), and THE BANK OF NEW YORK, as
trustee, (the "Trustee") under the Indenture dated as of November 27, 1996
between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a series of its securities to be
known as its __________________________ ______________(the "Notes"), the form
and substance of such Notes and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this ________ Supplemental
Indenture;
WHEREAS, under the terms of an Underwriting Agreement dated as
of __________, 199_ (the "Underwriting Agreement"), among the Company, NB
Capital Trust __ (the "Trust") and the Underwriters named therein (the
"Underwriters"), the Trust has agreed to sell to the Underwriters $____________
aggregate liquidation amount of its ___% Capital Securities (the "Capital
Securities");
WHEREAS, under the terms of a Subscription Agreement dated as
of _____________, 199_ between the Trust and the Company (the "Subscription
Agreement"), the Company has committed to purchase all of the Common Securities
of the Trust (the "Common Securities") from the Trust which Common Securities
represent at least _% of the capital of the Trust;
WHEREAS, the Trust proposes to invest the gross proceeds from
such offering of Capital Securities, together with the gross proceeds of the
issuance and sale by the Trust to the Company of the Common Securities, in
Notes, as a result of which the Trust will initially purchase $______________
aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this ______ Supplemental Indenture, and all requirements necessary
to make this _________ Supplemental
<PAGE>
Indenture a valid instrument in accordance with its terms and to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this ________ Supplemental Indenture have been duly authorized in
all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same
meaning when used in this ________ Supplemental Indenture;
(b) a term defined anywhere in this ________
Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a
Section or Article of this ________ Supplemental Indenture;
(e) headings are for convenience of reference only and
do not affect interpretation;
(f) the following terms have the meanings given to
them in the Declaration: (i) Business Day; (ii) Clearing Agency;
(iii) Delaware Trustee; (iv) Depositary; (v) No Recognition
Opinion; (vi) Capital Security Certificate; (vii) Property
Trustee; and (viii) Regular Trustees;
(g) the following terms have the meanings given to
them in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth
in Section 2.5.
2
<PAGE>
"Adjusted Treasury Rate" means, with respect to any prepayment
date, the Treasury Rate plus (i) ____% if such prepayment date occurs on or
before ________________ or (ii) ____% if such prepayment date occurs after
_______________.
"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 therein, 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 issuance of the Capital
Securities, and 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.
"Comparable Treasury Dealer" means (i)______________
___________________________________________________________________________,
and their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Property Trustee after consultation with the Company.
"Comparable Treasury Issue" means with respect to any
prepayment date the United States Treasury security selected by the Quotation
Agent as having a maturity comparable to the Remaining Life that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to three months after
________________, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Comparable Treasury Price" means (A) the average of _______
Reference Treasury Dealer Quotations for such prepayment date _______________ or
(B) if the Property Trustee obtains fewer than ______ such Reference Treasury
Dealer Quotations, the average of the _______________ quotations obtained.
3
<PAGE>
"Compounded Interest" shall have the meaning set forth
in Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of NB Capital Trust ___, a Delaware statutory business trust, dated as of
_________________, 199__.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Election" means that, as a result of the election
of the Company, as Sponsor, the Trust is to be dissolved in accordance with the
Declaration, and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata or other manner
specified in the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Note" shall have the meaning set forth in
Section 2.4.
"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 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.
"Maturity Date" means the date on which the Notes mature and
on which the principal shall be due and payable together with all accrued and
unpaid interest thereon, including Compounded Interest and Additional Interest,
if any.
"Maturity Repayment Price" means the price, at the Maturity
Date, equal to the principal amount of, plus accrued interest thereon, the
Notes.
"Non-Book-Entry Capital Securities" shall have the
meaning set forth in Section 2.4.
"Optional Prepayment Price" means the percentage of the
outstanding principal amount of the Notes specified below, plus, in each case,
accrued interest thereon to the date of prepayment:
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"Optional Prepayment" means prepayment prior to the Maturity
Date of the Notes at the option of the Company in whole or in part at any time
on or after ________________.
"Quotation Agent" means _________________________, or
any successor appointed by the Company.
"Reference Treasury Dealer" means _____________________
___________________________________________________________________________
and their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Property Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any prepayment date, the average, as
determined by the Property Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Property Trustee by such Reference
Treasury Dealer at 2:00 p.m. on the third Business Day preceding such prepayment
date.
"Remaining Life" means the time period from any date of
prepayment before _________________ to, but not including,
- ----------------.
"Special Event" means a Tax Event, Capital Treatment
Event or an Investment Company Event.
"Special Event Prepayment" means a prepayment of the Notes
prior to _______________, 20__, in whole but not in part, pursuant to a Tax
Event, a Capital Treatment Event or an Investment Company Event.
"Special Event Prepayment Price" means _____________
___________________________________________________________________________
___________________________________________________________________________.
"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
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taxing authority thereof or therein 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 as 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.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve Board and which
establishes yields on activity traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities", for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date. The Treasury Rate shall be calculated on the third
Business Day preceding the prepayment date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the "_______% Junior Subordinated Deferrable Interest Notes due ____", limited
in aggregate principal amount to $____________, which amount shall be as set
forth in any written
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order of the Company for the authentication and delivery of Notes pursuant to
Section 2.04 of the Indenture as well as in any subsequent or supplemental
written order of the Company.
SECTION 2.2 Maturity.
The Maturity Date is ______________, 20__.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on the Notes issued in certificated form will be payable, the transfer
of such Notes will be registrable and such Notes will be exchangeable for Notes
bearing identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of any
Notes is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such Notes
held by the Property Trustee will be made at such place and to such account as
may be designated by the Property Trustee.
SECTION 2.4 Global Form
(a) In connection with a Dissolution Election,
(i) the Notes in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a Global Note
in an aggregate principal amount equal to the aggregate principal amount of all
then outstanding Notes (a "Global Note"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the instructions of
the Regular Trustees. Upon any such presentation, the Company shall execute a
Global Note in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this ________ Supplemental Indenture. Payments on the Notes issued as a Global
Note will be made to the Depositary; and
(ii) if any Capital Securities are held in Non-
Book-Entry certificated form, the Notes in certificated form may be presented to
the Trustee by the Property Trustee and any Capital Security Certificate which
represents Capital Securities other than Capital Securities held by the Clearing
Agency or its
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nominee ("Non-Book-Entry Capital Securities") will be deemed to represent
beneficial interests in Notes presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate liquidation amount
of the Non-Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Security Registrar for transfer or reissuance
at which time such Capital Security Certificates will be canceled and a Note,
registered in the name of the holder of the Capital Security Certificate or the
transferee of the holder of such Capital Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Security Certificate canceled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this ________ Supplemental Indenture. On issue of such Notes,
Notes with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
(b) A Global Note may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article II of the Indenture, the Trustee, upon written
notice from the Company, will authenticate and make available for delivery the
Notes in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Note in exchange for such Global Note. In addition, the
Company may at any time determine that the Notes shall no longer be represented
by a Global Note. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver the
Notes in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Note in exchange for such Global Note. Upon the exchange of
the Global Note for such Notes in definitive registered form without coupons, in
authorized denominations, the Global Note shall be canceled by the Trustee. Such
Notes in definitive registered form issued in exchange for the Global Note shall
be registered
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in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
SECTION 2.5 Interest.
(a) Each Note will bear interest at the rate of ____% per
annum (the "Coupon Rate") from ______________, 199__ until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded semi-annually, payable
(subject to the provisions of Article IV) semi-annually in arrears on __________
and __________ of each year (each, an "Interest Payment Date," commencing on
____________, 199__), to the Person in whose name such Note or any predecessor
Note is registered, at the close of business on the regular record date for such
interest installment, which, in respect of any Notes of which the Property
Trustee is the Holder of a Global Note, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Capital Securities are no longer in Book-Entry only
form, the relevant record dates shall be __________ and __________ prior to the
regular Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semi-annual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
30-day period. In the event that any date on which interest is payable on the
Notes is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which 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.
(c) If, at any time while the Property Trustee is the Holder
of any Notes, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other domestic taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property
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Trustee, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
ARTICLE III
PREPAYMENT OF THE NOTES
SECTION 3.1 Special Event Prepayment.
If a Special Event has occurred and is continuing prior to
___________,____ the Company shall have the right upon not less than 30 days nor
more than 60 days notice to the Holders of the Notes to prepay the Notes, in
whole but not in part, for cash within 90 days following the occurrence of such
Special Event (the "90 Day Period") at a prepayment price equal to the Special
Event Prepayment Price. The Special Event Prepayment Price shall be paid prior
to 12:00 noon, New York time, on the date of such repayment or such earlier time
as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Special Event Prepayment Price by 10:00
a.m., New York time, on the date such Special Event Prepayment Price is to be
paid.
SECTION 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Fourteen of the Indenture, the Company shall have the
right to prepay the Notes, in whole or in part, at any time and from time to
time, on or after _____________, ______, at a redemption price equal to the
Optional Prepayment Price. Any prepayment pursuant to this paragraph will be
made upon not less than 30 days nor more than 60 days notice to the Holder of
the Notes, at the Optional Prepayment Price. If the Notes are only partially
prepaid pursuant to this Section 3.2, the Notes will be prepaid pro rata or by
lot or by any other method utilized by the Trustee; provided, that if at the
time of prepayment the Notes are registered as a Global Note, the Depositary
shall determine, in accordance with its procedures, the principal amount of such
Notes held by each Holder of Note to be prepaid. The Optional Prepayment Price
shall be paid prior to 12:00 noon, New York time, on the date of such prepayment
or at such earlier time as the Company determines provided that the Company
shall deposit with the Trustee an amount sufficient to pay the Optional
Prepayment Price by 10:00 a.m., New York time, on the date such Optional
Prepayment Price is to be paid.
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(b) If a partial prepayment of the Notes would result in the
delisting of the Capital Securities issued by the Trust from any national
securities exchange or other organization on which the Capital Securities are
then listed, the Company shall not be permitted to effect such partial
prepayment and may only prepay the Notes in whole.
SECTION 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to
time during the term of the Notes, to defer payments of interest by extending
the interest payment period of such Notes for a period not exceeding ____
consecutive semi-annual periods (the "Extended Interest Payment Period"), during
which Extended Interest Payment Period no interest shall be due and payable;
provided that no Extended Interest Payment Period may extend beyond the Maturity
Date. To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1, will bear interest thereon at the Coupon Rate
compounded semi-annually for each semi-annual period of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Notes, including any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Notes in whose
names the Notes are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination of
any Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed ____ consecutive semi-annual periods, or extend beyond
the Maturity Date of the Notes. Upon the termination of any Extended Interest
Payment Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
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SECTION 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of
the Notes at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Regular Trustees, the Property
Trustee and the Trustee of its selection of such Extended Interest Payment
Period at least one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to any applicable
self-regulatory organization or to holders of the Capital Securities issued by
the Trust, but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Notes at the time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Notes and the Trustee written notice of
its selection of such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to any applicable self-regulatory organization or to
Holders of the Notes.
(c) The semi-annual period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the ___ semi-annual periods permitted in the maximum Extended Interest Payment
Period permitted under Section
4.1.
Section 4.3 Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1 and such Extended Interest Payment Period
is continuing or (ii) there shall have occurred and be continuing any Event of
Default or Nonpayment, as defined in the Indenture, then (a) the Company 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 Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of its capital stock for another class or series of its capital
stock or (iii) the purchase of fractional interests in shares of its capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such capital stock or security being converted or exchanged) or make any
guarantee payment with respect thereto and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase
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or redeem any debt securities (including guarantees)issued by the Company which
rank pari passu with or junior to the Notes.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Notes to the Property Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Notes, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization, maintenance and
dissolution of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the underwriters in connection therewith),
the fees and expenses of the Property Trustee and the Delaware Trustee, the
costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) be primarily and fully liable for any
indemnification obligations arising with respect to the
Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
Section 5.2 Payment Upon Resignation or Removal.
Upon termination of this ________ Supplemental Indenture or
the Indenture or the removal or resignation of the Trustee, unless otherwise
stated, the Company shall pay to the Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Declaration or
the removal or resignation of the Delaware Trustee or the
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Property Trustee, as the case may be, pursuant to Section 5.6 of the
Declaration, the Company shall pay to the Delaware Trustee or the Property
Trustee, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Notes are to be issued as a Global Note in connection
with the distribution of the Notes to the holders of the Capital Securities
issued by the Trust upon a Dissolution Election, the Company will use its best
efforts to list such Notes on any stock exchanges on which the Capital
Securities are then listed.
ARTICLE VII
FORM OF NOTE
SECTION 7.1 Form of Note.
The Notes and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a
Global Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of The Bank of New York, as Property Trustee of NB
Capital Trust __ (the "Trust"). This Note is exchangeable for Notes registered
in the name of a person other than The Bank of New York, as Property Trustee of
NB Capital Trust __ or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Note may be registered except in
limited circumstances.
Unless this Note is presented by an authorized representative
of The Bank of New York, 101 Barclay Street, New York, New York to the issuer or
its agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of The Bank of New York, as Property Trustee of NB
Capital Trust __ or such other name as requested by an authorized representative
of The Bank of New York and any payment hereon is made to The Bank of New York,
as Property Trustee of NB Capital Trust __, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
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hereof, The Bank of New York, as Property Trustee of NB Capital
Trust __, has an interest herein.]
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A BANK DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF NATIONSBANK 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.
CUSIP No. 638585 __ __
$---------------
No._____________
NATIONSBANK CORPORATION
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST NOTES
DUE ____
NATIONSBANK CORPORATION, a North Carolina corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________ Dollars
($___________) on _________________, 20__ (the "Maturity Date"), and to pay
interest on said principal sum from _____________, 19__, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually (subject to deferral
as set forth herein) in arrears on ____________ and ____________ of each year
commencing _____________, 19__, at the rate of ____% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded semi-annually. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Note is not a Business Day, then payment of interest
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. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name
this Note (or one or more
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Predecessor Securities, as defined in the Indenture) is registered at the close
of business on the regular record date for such interest installment, which
shall be the close of business on the business day next preceding such Interest
Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO
LONGER REPRESENTED BY A GLOBAL NOTE -- which shall be the close of business on
__________ or __________]. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such regular record date and may be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Notes not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. The principal of (and premium, if any) and the interest on
this Note shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Note is the Property Trustee, the payment of the principal of (and
premium, if any) and interest on this Note will be made at such place and to
such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Obligations (as defined in the Indenture)
and this Note is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Obligations, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
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This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed in its name by its duly authorized officers.
NATIONSBANK CORPORATION
By: ______________________
Name:_____________________
[Seal] Title:____________________
Attest:
By: ______________________
Name: _____________________
Title: ____________________
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated ______________________
The Bank of New York,
as Trustee
By __________________
Authorized Signatory
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(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of November 27, 1996, duly executed and delivered
between the Company and The Bank of New York, as Trustee (the "Trustee"), as
supplemented by the ________ Supplemental Indenture dated as of _____________,
19__ (the "Supplemental Indenture"), between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Notes is limited in aggregate principal amount as specified in
the ________ Supplemental Indenture.
Because of the occurrence and continuation of a Special Event,
as defined in the Indenture, in certain circumstances, this Note may become due
and payable at a prepayment price equal to(the "Optional Prepayment Price"). Any
prepayment pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice, at the Optional Prepayment Price. If the Notes are
only partially prepaid by the Company pursuant to an Optional Prepayment, the
Notes will be prepaid pro rata or by lot or by any other method utilized by the
Trustee; provided that if, at the time of prepayment, the Notes are registered
as a Global Note, the Depositary shall determine the principal amount of such
Notes held by each Note holder to be prepaid in accordance with its procedures.
In the event of prepayment of this Note in part only, a new
Note or Notes of this series for the unrepaid portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute ________ Supplemental
Indentures for
18
<PAGE>
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any ________ Supplemental Indenture
or of modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such ________ Supplemental Indenture shall (i) extend the fixed
maturity of any Notes of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the Holder
of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the
Holders of which are required to consent to any such ________ Supplemental
Indenture, without the consent of the Holders of each Note then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Notes of any series at the
time outstanding affected thereby, on behalf of all of the Holders of the Notes
of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences. Any such consent or waiver by
the registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term
of the Notes and from time to time to defer payment of interest by extending the
interest payment period of such Notes for a period not exceeding ____
consecutive semi-annual periods (an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Notes to the
extent that payment of such interest is enforceable under applicable law);
provided that no Extended Interest Payment Period may last beyond the Maturity
Date of the Notes. Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed ___ consecutive semi-annual periods
or extend the Maturity Date of the Notes. At the termination of any such
Extended Interest
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Payment Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period, subject to the requirements contained in this paragraph.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in the
City and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any paying agent and the Security Registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
This Global Note is exchangeable for Notes in definitive form
only under certain limited circumstances set forth in the Indenture. Notes of
this series so issued are issuable only in registered form without coupons in
denominations of $________ and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth, Notes
of this series so issued are
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exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
ARTICLE VIII
ORIGINAL ISSUE OF NOTES
SECTION 8.1 Original Issue of Notes.
Notes in the aggregate principal amount of $___________ may,
upon execution of this ________ Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its Chief Executive Officer, Chief Financial Officer, its
President, or any Vice President or its Treasurer, without any further action by
the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this ________ Supplemental
Indenture, is in all respects ratified and confirmed, and this ________
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this ________ Supplemental Indenture.
SECTION 9.3 Governing Law.
This ________ Supplemental Indenture and each Note shall be
deemed to be a contract made under the internal laws of
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the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this
________ Supplemental Indenture or in the Notes shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this ________
Supplemental Indenture or of the Notes, but this ________ Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
This ________ Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
________ Supplemental Indenture to be duly executed by their authorized
respective officers as of the day and year first above written.
NATIONSBANK CORPORATION
By:
Name: _____________________________
Title: ____________________________
THE BANK OF NEW YORK
as Trustee
By
Name: _____________________________
Title: ____________________________
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CAPITAL SECURITIES GUARANTEE AGREEMENT
NB Capital Trust __
Dated as of ________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.........................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.......................................................5
SECTION 2.2 Lists of Holders of Securities.........................................................6
SECTION 2.3 Reports by the Capital Securities Guarantee
Trustee................................................................................6
SECTION 2.4 Periodic Reports to Capital Securities
Guarantee Trustee......................................................................6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent..............................................................................7
SECTION 2.6 Events of Default; Waiver..............................................................7
SECTION 2.7 Event of Default; Notice...............................................................7
SECTION 2.8 Conflicting Interests..................................................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee......................................................................8
SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee...............................................................................10
SECTION 3.3 Not Responsible for Recitals or Issuance of
Capital Securities Guarantee..........................................................12
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee;
Eligibility...........................................................................13
SECTION 4.2 Appointment, Removal and Resignation of
Capital Securities Guarantee Trustee..................................................13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.............................................................................14
SECTION 5.2 Waiver of Notice and Demand...........................................................15
SECTION 5.3 Obligations Not Affected..............................................................15
SECTION 5.4 Rights of Holders.....................................................................16
<PAGE>
Page
SECTION 5.5 Guarantee of Payment..................................................................16
SECTION 5.6 Subrogation...........................................................................17
SECTION 5.7 Independent Obligations...............................................................17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions............................................................17
SECTION 6.2 Ranking...............................................................................18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination...........................................................................18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation...........................................................................18
SECTION 8.2 Indemnification.......................................................................19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................................................19
SECTION 9.2 Amendments............................................................................19
SECTION 9.3 Notices...............................................................................20
SECTION 9.4 Benefit...............................................................................21
SECTION 9.5 Governing Law.........................................................................21
</TABLE>
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CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"),
dated as of __________________, is executed and delivered by NATIONSBANK
CORPORATION, a North Carolina 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 NB Capital Trust
__, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of ______________, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided preferred beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof _________ Capital Securities, having an
aggregate liquidation amount of $____________, designated the ____% Capital
Securities (the "Capital Securities");
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 is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Capital Securities to receive Guarantee Payments under this Capital Securities
Guarantee.
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.
<PAGE>
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;
(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.
"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.
2
<PAGE>
"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 ____% Capital
Securities (liquidation amount $_________ per Capital Security) issued pursuant
to the Declaration representing preferred undivided beneficial interests in the
assets of the
Issuer.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital
Securities Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at 101 Barclay Street, 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 payment 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 the Indenture has occurred and is continuing, the rights of holders of the
Common Securities to receive payments under the
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<PAGE>
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 applicable Clearing Agency.
"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 Indenture dated as of November 27, 1996,
among the Guarantor (the "Note Issuer") and The Bank of New York, as trustee,
together with any Board Resolution (as defined in the Indenture) or any
indenture supplemental thereto, pursuant to which certain subordinated debt
securities of the Note Issuer are to be issued to the Property Trustee (as
defined in the Declaration) of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Capital
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation, dissolution or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Capital
Securities.
"Notes" means the series of junior subordinated debt
securities of the Guarantor designated the ____% Junior Subordinated Deferrable
Interest Notes due ____ held by the Property Trustee of the Issuer.
"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 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,
4
<PAGE>
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.
ARTICLE II
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
5
<PAGE>
(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 14 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
14 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 shall also 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 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.
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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 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, or of which a Responsible
Officer of the Capital Securities Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge.
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.
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<PAGE>
ARTICLE III
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 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:
8
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(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;
(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
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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 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 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).
(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.
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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
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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 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.
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ARTICLE IV
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 an 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 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.
(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
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Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor.
(c) The Capital Securities Guarantee Trustee appointed to
office shall hold office until a Successor Capital Securities Guarantee Trustee
shall have been appointed or until its removal or resignation. 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.
ARTICLE V
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.
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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 or Capital Securities,
including the failure to receive any approval of the Board of Governors of the
Federal Reserve System required for the redemption of 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.
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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 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 (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
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
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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 or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
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 VIII
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
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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.
ARTICLE IX
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
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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):
NationsBank Corporation
NationsBank Corporation Center
100 North Tryon Street, 23rd Floor
Charlotte, North Carolina 28255
Attention: Treasurer
Telecopy: (704) 386-0270
(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
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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.
NATIONSBANK CORPORATION, as
Guarantor
By:
Name:
Title: Senior Vice President
THE BANK OF NEW YORK, as Capital
Securities Guarantee Trustee
By:
Name:
Title:
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<PAGE>
Smith Helms Mulliss & Moore, LLP
214 North Church Street
Charlotte, North Carolina 28202
704/343-2000
December 19, 1996
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Re: Registration Statement on Form S-3 with respect to an
Aggregate of $1,031,000,000 of Junior Subordinated Debt
Securities and Guarantees
Ladies and Gentlemen:
We have acted as counsel for NationsBank Corporation (the
"Corporation") in connection with the registration by the Corporation of up to
an aggregate of $1,031,000,000 of its junior subordinated debt securities (the
"Debt Securities") and guarantees of preferred securities of certain trusts (the
"Guarantees", and, together with the Debt Securities, the "Securities") as set
forth in the Registration Statement on Form S-3 (the "Registration Statement")
that is being filed on the date hereof with the Securities and Exchange
Commission (the "Commission") by the Corporation pursuant to the Securities Act
of 1933, as amended. This opinion letter is Exhibit 5.1 to the Registration
Statement.
The Securities are to be issued, separately or together, in one or more
series and are to be sold from time to time as set forth in the Registration
Statement, the Prospectus contained therein (the "Prospectus") and any
amendments or supplements thereto.
We have relied upon an officer's certificate as to corporate action
heretofore taken with respect to the Securities.
Based on the foregoing, we are of the opinion that when (1) the
Registration Statement shall have been declared effective by order of the
Commission, (2) the terms of any class or series of such Securities have been
authorized by appropriate corporate action of the Corporation and (3) such
Securities have been issued, sold and delivered upon the terms and conditions
set forth in the Registration Statement, the Prospectus and the applicable
<PAGE>
NationsBank Corporation
December 19, 1996
Page 2
supplement(s) to such Prospectus (including, in the case of the Debt Securities,
due authentication thereof by the Trustee or by the authenticating agent, in
accordance with the provisions of the Indenture under which the Debt Securities
are to be issued), then the Securities will be validly authorized and issued and
binding obligations of the Corporation.
In rendering this opinion, we are not expressing an opinion as to the
laws of any jurisdiction other than the State of North Carolina and the United
States of America and we assume no responsibility as to the applicability of the
laws of any other jurisdiction to the subject matter hereof or to the effects of
such laws thereon.
This opinion is rendered to you and for your benefit solely in
connection with the registration of the Securities. This opinion may not be
relied on by you for any other purpose and may not be relied upon by, nor may
copies thereof be provided to, any other person, firm, corporation or entity for
any purposes whatsoever without our prior written consent. We hereby consent to
be named in the Registration Statement and in the Prospectus as attorneys who
passed upon the legality of the Securities and to the filing of a copy of this
opinion as Exhibit 5.1 to the Registration Statement. Unless the prior written
consent of our firm is obtained, this opinion is not to be quoted or otherwise
referred to in any written report, proxy statement or other registration
statement, nor is it to be filed with or furnished to any other governmental
agency or other person, except as otherwise required by law.
Very truly yours,
/s/ SMITH HELMS MULLISS & MOORE, L.L.P.
RICHARDS, LAYTON & FINGER
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Telephone (302) 658-6541
Telecopier (302) 658-6548
Writer's Direct Dial Number
December 19, 1996
NB Capital Trust III
NB Capital Trust IV
NB Capital Trust V
c/o NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Re: NB Capital Trust III, NB Capital Trust IV and NB Capital Trust V
Ladies and Gentlemen:
We have acted as special Delaware counsel for NationsBank Corporation, a
North Carolina corporation (the "Company"), NB Capital Trust III, a Delaware
business trust ("Trust III"), NB Capital Trust IV, a Delaware business trust
("Trust IV"), and NB Capital Trust V, a Delaware business trust ("Trust V")
(Trust III, Trust IV and Trust V are hereinafter collectively referred to as the
"Trusts" and sometimes hereinafter individually referred to as a "Trust"), in
connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of Trust III, dated October 29, 1996 as filed
with the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on November 1, 1996;
<PAGE>
NB Capital rust III
NB Capital Trust IV
NB Capital Trust V
December 19, 1996
Page 2
(b) The Certificate of Trust of Trust IV, dated December 12, 1996, as filed
with the Secretary of State on December 13, 1996;
(c) The Certificate of Trust of Trust V, dated December 12, 1996, as filed
with the Secretary of State on December 13, 1996;
(d) The Declaration of Trust of Trust III, dated as of October 29, 1996
among the Company and the trustees of Trust III named therein;
(e) The Declaration of Trust of Trust IV, dated as of December 12, 1996
among the Company and the trustees of Trust IV named therein;
(f) The Declaration of Trust of Trust V, dated as of December 12, 1996
among the Company and the trustees of Trust V named therein;
(g) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Preferred Securities of the Trusts
representing preferred undivided beneficial interests in the assets of the
Trusts (each, a "Preferred Security" and collectively, the "Preferred
Securities"), filed by the Company and the Trusts with the Securities and
Exchange Commission on December 19, 1996;
(h) A form of Amended and Restated Declaration of Trust for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (including the exhibits and Annex I
thereto) (collectively, the "Declarations" and individually, a "Declaration"),
attached as an exhibit to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts, dated December
18, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (i) above. In particular, we have
not reviewed any document (other than the documents listed in paragraphs (a)
through (i) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
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NB Capital Trust III
NB Capital Trust IV
NB Capital Trust V
December 19, 1996
Page 3
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies
or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declarations constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Declarations and
the Certificates of Trust are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such documents,
(v) the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trusts (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for such Preferred Security, in accordance with the Declarations
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the
Declarations and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
<PAGE>
NB Capital Trust III
NB Capital Trust IV
NB Capital Trust V
December 19, 1996
Page 4
1. Each of the Trusts has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. That Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the applicable
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to the
use of our name under the heading "Legal Matters" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other person for any purpose.
Very truly yours,
/s/Richards, Layton & Finger
Exhibit 8.1
[FORM OF OPINION OF STROOCK & STROOCK & LAVAN]
, 1996
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Ladies and Gentlemen:
We have acted as special tax counsel to NationsBank Corporation (the
"Company") and to NB Capital Trust III, NB Capital Trust IV and NB Capital Trust
V (the "Trusts") in connection with the proposed issuance of (i) Preferred
Securities (the "Preferred Securities") of the Trusts to be offered in one or
more underwritten public offerings; (ii) Junior Subordinated
Notes (the "Notes") of the Company to be issued pursuant to the terms of an
indenture between the Company and The Bank of New York, as trustee (the
"Indenture"), and sold by the Company to the Trusts, and (iii) Guarantee
Agreements of the Company with respect to the Preferred Securities (the
"Guarantees") between the Company and The Bank of New York, as trustee. The
Preferred Securities are to be issued in a combined aggregate liquidation amount
of up to $1,000,000,000, as contemplated by the registration statement on Form
S-3 (the "Registration Statement") filed by the Company and the Trusts for
the registration of the Preferred Securities, the Notes and the Guarantees under
the Securities Act of 1933, as amended (the "Act").
We have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Registration Statement,
(ii) the Indenture, and (iii) the Guarantees. We have also examined such other
documents and satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion.
[Based on the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that the statements contained in the
preliminary prospectus supplement constituting part of the Registration
Statement under the caption "United States Federal Income Taxation" describing
certain federal income tax consequences to holders of the Preferred Securities
and the Notes, as qualified therein, constitute an accurate description, in
general terms, of the indicated United States federal tax consequences to such
holders.]
The opinion expressed above is based on existing provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), existing Treasury
regulations, published interpretations of the Code and such Treasury regulations
by the Internal Revenue Service, and existing court decisions, any of which
could be changed at any time. Any such changes may or may not be retroactively
applied.
Attorneys involved in the preparation of this opinion are admitted to
practice law in the State of New York and we do not purport to be experts on, or
express any opinion herein concerning any law other than the laws of the State
of New York and the federal laws of the United States of America (excluding
therefrom principles of conflicts of laws, state securities or blue sky laws).
To the extent that our opinion relates to or is dependent upon matters governed
by the laws of other states, we have assumed the legal conclusions set forth in
the opinions of Smith Helms Mulliss & Moore, L.L.P. and of Richards, Layton &
Finger which have been filed as Exhibits 5.1 and 5.2, respectively, to the
Registration Statement.
This letter is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Notes, the Guarantees or the Preferred
Securities or any other party to which it is not specifically addressed or on
which reliance is not expressly permitted hereby.
Very truly yours,
[Stroock & Stroock & Lavan]
Exhibit 23.1
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of NationsBank
Corporation of our report dated January 12, 1996, which appears on page 46
of the 1995 Annual Report to Shareholders of NationsBank Corporation, which
is incorporated by reference in NationsBank Corporation's Annual Report on
Form 10-K for the year ended December 31, 1995. We also consent to the
reference to us under the heading "EXPERTS" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Charlotte, North Carolina
December 19, 1996
Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of NationsBank
Corporation for the registration of $1,031,000,000 of junior subordinated
notes and preferred securities and to the incorporation by reference
therein of our report dated January 18, 1996 (except for the pooling of
interests with Fourth Financial Corporation as of January 31, 1996, and Note
3, for which the date is January 31, 1996) with respect to the supplemental
consolidated financial statements of Boatmen's Bancshares, Inc. for the
three years ended December 31, 1995, 1994, and 1993 incorporated by
reference in NationsBank Corporation's Current Report on Form 8-K dated
September 6, 1996 (as amended by Form 8-K/A-1 on September 11, 1996, and
Form 8-K/A-2 on November 13, 1996), as filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
December 17, 1996
Exhibit 23.5
CONSENT OF STROOCK & STROOCK & LAVAN
To the Board of Directors of NationsBank Corporation
To the Trustees of NB Capital Trust III, IV and V
We hereby consent to the form of opinion to be used as Exhibit 8.1 to
the Registration Statement. We also hereby consent to the reference to our firm
under the caption "Legal Matters" in the preliminary prospectus constituting a
part of the Registration Statement.
In giving such consent, we do not admit hereby that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
/s/ STROOCK & STROOCK & LAVAN
- ---------------------------------
STROOCK & STROOCK & LAVAN
Date: December 19, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of NationsBank Corporation, and
the several undersigned Officers and Directors thereof whose signatures appear
below, hereby makes, constitutes and appoints Paul J. Polking and Charles M.
Berger, and each of them acting individually, its, his and her true and lawful
attorneys, with power to act without any other and with full power of
substitution, to execute, deliver and file in its, his and her name and on its,
his and her behalf, and in each of the undersigned Officer's and Director's
capacity or capacities as shown below, (a) a Registration Statement on Form S-3
(or other appropriate form) with respect to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of up to (i)
$1,000,000,000 in aggregate initial offering price of preferred capital
securities of each of NationsBanc Capital Trust III, NationsBanc Capital Trust
IV and NationsBanc Capital Trust V (collectively, the "Preferred Securities"),
(ii) an amount of NationsBank Corporation junior subordinated debt securities
(the "Subordinated Debt Securities") equal to 105% of the amount of Preferred
Securities so registered, and (iii) an amount of NationsBank Corporation
guarantees (the "Guarantees") of the Preferred Securities equal to the amount of
Preferred Securities so registered (the Subordinated Debt Securities, the
Preferred Securities and the Guarantees hereinafter collectively referred to as
the "Securities"), which Securities may be offered separately or together, in
separate series and in amounts, at prices and on terms to be determined at the
time of sale, all as authorized by the Board of Directors of NationsBank
Corporation as of December 17, 1996, and all documents in support thereof or
supplemental thereto and any and all amendments, including any and all
pre-effective and post-effective amendments, to the foregoing (hereinafter
collectively called the "Registration Statement"); and (b) such registration
statements, petitions, applications, consents to service of process or other
instruments, any and all documents in support thereof or supplemental thereto,
and any and all amendments or supplements to the foregoing, as may be necessary
or advisable to qualify or register the securities covered by said Registration
Statement under such securities laws, regulations and requirements as may be
applicable; and each of NationsBank Corporation and said Officers and Directors
hereby grants to said attorneys, and to each of them, full power and authority
to do and perform each and every act and thing whatsoever as said attorneys or
attorney may deem necessary or advisable to carry out fully the intent of this
power of attorney to the same extent and with the same effect as NationsBank
Corporation might or could do, and as each of said Officers and Directors might
or could do personally in his or her capacity or capacities as aforesaid, and
each of NationsBank Corporation and said Officers and Directors hereby ratifies
and confirms all acts and things which said attorneys or attorney might do or
cause to be done by virtue of this power of attorney and its, his or her
signature as the same may be signed by said attorneys or attorney, or any of
them, to any or all of the following (and/or any and all amendments and
supplements to any or all thereof): such Registration Statement under the
Securities Act, and all such registration statements, petitions, applications,
consents to service of process and other instruments, and any and all documents
in support thereof or supplemental thereto, under such securities laws,
regulations and requirements as may be applicable.
IN WITNESS WHEREOF, NationsBank Corporation has caused this power of
attorney to be signed on its behalf, and each of the undersigned Officers and
Directors in the capacity or capacities noted has hereunto set his or her hand
as of the date indicated below.
NATIONSBANK CORPORATION
(Registrant)
By: /s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Dated: December 17, 1996
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ HUGH L. MCCOLL, JR. Chairman of the Board, Chief Executive Officer December 17, 1996
and Director (Principal Executive Officer)
(HUGH L. MCCOLL, JR.)
/s/ JAMES H. HANCE, JR. Vice Chairman and Chief Financial Officer December 17, 1996
(Principal Financial Officer)
(JAMES H. HANCE, JR.)
/s/ MARC D. OKEN Executive Vice President and Chief December 17, 1996
Accounting Officer (Principal
(MARC D. OKEN) Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ RONALD W. ALLEN Director December 17, 1996
(RONALD W. ALLEN)
/s/ RAY C. ANDERSON Director December 17, 1996
(RAY C. ANDERSON)
/s/ WILLIAM M. BARNHARDT Director December 17, 1996
(WILLIAM M. BARNHARDT)
/s/ THOMAS E. CAPPS Director December 17, 1996
(THOMAS E. CAPPS)
/s/ CHARLES W. COKER Director December 17, 1996
(CHARLES W. COKER)
/s/ THOMAS G. COUSINS Director December 17, 1996
(THOMAS G. COUSINS)
/s/ ALAN T. DICKSON Director December 17, 1996
(ALAN T. DICKSON)
/s/ W. FRANK DOWD, JR. Director December 17, 1996
(W. FRANK DOWD, JR.)
/s/ PAUL FULTON Director December 17, 1996
(PAUL FULTON)
/s/ TIMOTHY L. GUZZLE Director December 17, 1996
(TIMOTHY L. GUZZLE)
/s/ W. W. JOHNSON Director December 17, 1996
(W. W. JOHNSON)
/s/ JOHN J. MURPHY Director December 17, 1996
(JOHN J. MURPHY)
/s/ JOHN C. SLANE Director December 17, 1996
(JOHN C. SLANE)
/s/ O. TEMPLE SLOAN, JR. Director December 17, 1996
(O. TEMPLE SLOAN, JR.)
/s/ JOHN W. SNOW Director December 17, 1996
(JOHN W. SNOW)
/s/ MEREDITH R. SPANGLER Director December 17, 1996
(MEREDITH R. SPANGLER)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ ROBERT H. SPILMAN Director December 17, 1996
(ROBERT H. SPILMAN)
/s/ RONALD TOWNSEND Director December 17, 1996
(RONALD TOWNSEND)
/s/ E. CRAIG WALL, JR. Director December 17, 1996
(E. CRAIG WALL, JR.)
/s/ JACKIE M. WARD Director December 17, 1996
(JACKIE M. WARD)
/s/ VIRGIL R. WILLIAMS Director December 17, 1996
(VIRGIL R. WILLIAMS)
</TABLE>
<PAGE>
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
December 17, 1996
Approval of Issuance and Sale of Preferred Securities
and Appointment of Committee
RESOLVED FURTHER, that Paul J. Polking and Charles M. Berger hereby are
appointed attorneys-in-fact for, and each of them with full power to act without
the other hereby is authorized and empowered to sign the Registration Statement
and any amendment or amendments (including any pre-effective or post-effective
amendments) thereto on behalf of, the Corporation and any of the following: the
Principal Executive Officer, the Principal Financial Officer, the Principal
Accounting Officer and any other officer of the Corporation;
<PAGE>
CERTIFICATE OF SECRETARY
I, Allison L. Gilliam, Assistant Secretary of NationsBank Corporation,
a corporation duly organized and existing under the laws of the State of North
Carolina (the "Corporation"), do hereby certify that the foregoing is a true and
correct copy of the resolutions duly adopted by the Board of Directors of the
Corporation at a meeting of the Board of directors held on December 17, 1996, at
which meeting a quorum was present and acting throughout and that said
resolution is in full force and effect and has not been amended or rescinded as
of the date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed the seal of
the Corporation as of this 19th day of December, 1996.
/s/ Allison L. Gilliam
Assistant Secretary
(CORPORATE SEAL)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NATIONSBANK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NORTH CAROLINA 56-0906609
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
JUNIOR SUBORDINATED NOTES
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT. (EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/PAUL J. SCHMALZEL
NAME: PAUL J. SCHMALZEL
TITLE: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NB CAPITAL TRUST III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 56-6490302
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
PREFERRED SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT.(EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 20TH DAY OF NOVEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/MARY LAGUMINA
NAME: MARY LAGUMINA
TITLE: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NB CAPITAL TRUST IV
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
PREFERRED SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS
SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
-2-
<PAGE>
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT. (EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /s/ MARY LAGUMINA
NAME: MARY LAGUMINA
TITLE: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NB CAPITAL TRUST V
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
PREFERRED SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT. (EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION
STATEMENT NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/MARY LAGUMINA
NAME: MARY LAGUMINA
TITLE: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NATIONSBANK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NORTH CAROLINA 56-0906609
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
GUARANTEE OF PREFERRED SECURITIES OF
NB CAPITAL TRUST III
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT. (EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION
STATEMENT NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/MARY LAGUMINA
NAME: MARY LAGUMINA
TITLE: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NATIONSBANK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NORTH CAROLINA 56-0906609
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
GUARANTEE OF PREFERRED SECURITIES OF
NB CAPITAL TRUST IV
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT. (EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION
STATEMENT NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/PAUL J. SCHMALZEL
NAME: PAUL J. SCHMALZEL
TITLE: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NATIONSBANK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NORTH CAROLINA 56-0906609
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
GUARANTEE OF PREFERRED SECURITIES OF
NB CAPITAL TRUST V
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
NAME ADDRESS
- --------------------------------------------------------------------------------
SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY, N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE. (SEE NOTE ON PAGE 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE
24 OF THE COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH
CONTAINS THE AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF
POWERS TO EXERCISE CORPORATE TRUST POWERS. (EXHIBIT 1 TO
AMENDMENT NO. 1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-6215, EXHIBITS 1A AND 1B TO FORM T-1 FILED WITH
REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE
ACT.(EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION STATEMENT
NO. 33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS
SUPERVISING OR EXAMINING AUTHORITY.
-2-
<PAGE>
NOTE
INASMUCH AS THIS FORM T-1 IS FILED PRIOR TO THE ASCERTAINMENT BY THE
TRUSTEE OF ALL FACTS ON WHICH TO BASE A RESPONSIVE ANSWER TO ITEM 2, THE ANSWER
TO SAID ITEM IS BASED ON INCOMPLETE INFORMATION.
ITEM 2 MAY, HOWEVER, BE CONSIDERED AS CORRECT UNLESS AMENDED BY AN
AMENDMENT TO THIS FORM T-1.
-3-
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 17TH DAY OF DECEMBER, 1996.
THE BANK OF NEW YORK
BY: /S/PAUL J. SCHMALZEL
NAME: PAUL J. SCHMALZEL
TITLE: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1996,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
===========
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
<PAGE>
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
-----------
Total liabilities .................... 39,099,580
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
Total liabilities and equity
capital ........................... $42,675,866
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
<PAGE>
