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DECLARATION OF TRUST
NB CAPITAL TRUST IV
Dated as of December 12, 1996
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TABLE OF CONTENTS
Page
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
i
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
(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-
2
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.
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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.
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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
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
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
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
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
(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
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
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
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
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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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.
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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
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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
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