EXHIBIT 4(E)
TRUST AGREEMENT, dated as of November 6, 1996, by and between First Union
Corporation, a North Carolina corporation, as "Depositor", and Wilmington Trust
Company, a Delaware trust company, as "Trustee".
The Depositor and the Trustee hereby agree as follows:
Section 1. THE TRUST. The trust created hereby shall be known as First
Union Capital II (the "Trust"), in which name the Trustee, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
Section 2. THE TRUST ESTATE. The Depositor hereby assigns, transfers,
conveys and sets over to the Trustee the sum of $10. The Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustee hereby declares that it
will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C. (section xxxx)
3801 ET SEQ. (the "Business Trust Act"), and that this document constitute the
governing instrument of the Trust. The Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
Section 3. AMENDED AND RESTATED TRUST AGREEMENT. The Depositor and the
Trustee will enter into an amended and restated Trust Agreement, satisfactory to
each such party and substantially in the form to be included as an exhibit to
the 1933 Act Registration Statement (as defined below), to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities (as defined below) and common securities of the Trust to be
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustee shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
Section 4. CERTAIN AUTHORIZATIONS. The Depositor and the Trustee hereby
authorize and direct the Depositor, as the sponsor of the Trust, (I) to file
with the Securities and Exchange Commission (the "Commission") and execute, in
each case on behalf of the Trust (A) the Registration Statement on Form S-3 (the
"1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the preferred securities of the
Trust (the "Preferred Securities") and certain other securities of the Depositor
and (B) a Registration Statement on Form 8-A (the "1934 Act Registration
Statement") (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under
Section 12 of the Securities Exchange Act of 1934, as amended; (II) to file with
one or more national securities exchanges (each, an "Exchange") or the National
Association of Securities Dealers ("NASD") and execute on behalf of the Trust a
listing application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market ("NASDAQ"); (III) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws; and (IV) to execute on behalf of the Trust such Underwriting
Agreements with one or more underwriters relating to the offering of the
Preferred Securities as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to in clauses (i),
(ii) and (iii) above is required by the rules and regulations of the Commission,
any Exchange, the NASD or state securities or "Blue Sky" laws, to be executed on
behalf of the Trust by a Trustee, the Depositor and any Trustee appointed
pursuant to Section 6 hereof are hereby authorized to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that Wilmington Trust Company, in its capacity as a trustee of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
Section 5. COUNTERPARTS. This Trust Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6. TRUSTEES. The number of Trustees initially shall be one (1) 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 Depositor, which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, 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 Delaware law. Subject to the
foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustee may resign upon thirty days' prior notice to the Depositor.
Section 7. GOVERNING LAW. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to conflicts of law principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
FIRST UNION CORPORATION,
as Depositor
By: /s/ XXXXXXX X. XXXXXXXXX
NAME: XXXXXXX X. XXXXXXXXX
TITLE: SENIOR VICE PRESIDENT
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Trustee
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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