THIRD SUPPLEMENTAL INDENTURE, dated as of February 26, 1998, among FIRST
UNION CORPORATION, a corporation duly organized and existing under the laws of
the State of North Carolina ("FUNC"), FIRST UNION CORPORATION OF NEW JERSEY, a
corporation duly organized and existing under the laws of the State of New
Jersey ("FUNC-NJ"), and THE CHASE MANHATTAN BANK, N.A., a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (the "Trustee").
R E C I T A L S
WHEREAS, FUNC-NJ (successor by merger to First Fidelity Bancorporation)
has heretofore executed and delivered to the Trustee, an Indenture, dated as of
April 1, 1988, as supplemented by the First Supplemental Indenture thereto,
dated as of June 14, 1993, and the Second Supplemental Indenture thereto, dated
as of January 1, 1996 (as supplemented, the "Indenture"), providing for the
issuance from time to time of FUNC-NJ's unsecured debentures, notes or other
evidences of indebtedness (the "Securities"), to be issued in one or more series
as provided in the Indenture;
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Plan"),
FUNC-NJ is merging (the "Merger") with and into FUNC effective February 26,
1998, the separate existence of FUNC-NJ shall cease and FUNC shall survive and
continue to exist as a North Carolina corporation (the "Continuing
Corporation");
WHEREAS, Section 801 of the Indenture provides, in part, that FUNC-NJ
shall not merge into another corporation unless the corporation into which
FUNC-NJ is merged shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed;
WHEREAS, Section 901(1) of the Indenture provides that, without the
consent of any Holders, FUNC-NJ, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into a supplemental
indenture to evidence the succession of another corporation to FUNC-NJ and the
assumption by any such successor of the covenants of FUNC-NJ in the Indenture
and in the Securities;
WHEREAS, FUNC-NJ has delivered to the Trustee (i) an Officers'
Certificate and an Opinion of Counsel, each stating that the Merger and this
Third Supplemental
Indenture comply with Article Eight and the applicable provisions of Article
Nine of the Indenture and that all conditions precedent provided for in the
Indenture relating to the Merger and the execution and delivery of this Third
Supplemental Indenture have been complied with and (ii) a copy of the Board
Resolution authorizing the execution of this Third Supplemental Indenture;
WHEREAS, immediately after giving effect to the Merger and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of the Merger as having been incurred by the Company or such Subsidiary
at the time of the Merger, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default or Default, shall
have happened and be continuing; and
WHEREAS, all things necessary to authorize the assumption by the
Continuing Corporation of FUNC-NJ's obligations under the Indenture and to make
this Third Supplemental Indenture when executed by the parties hereto a valid
and binding amendment of and supplement to the Indenture have been done and
performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby mutually covenant and agree as follows:
SECTION 1. Assumption of Obligations. The Continuing Corporation hereby
expressly assumes, from and after the Effective Time (as defined in the Plan) of
the Merger, the due and punctual payment of the principal of (and premium, if
any) and interest on all the Securities and the performance of every covenant of
the Indenture on the part of the Company to be performed or observed.
SECTION 2. Succession and Substitution. The Continuing Corporation, from
and after the Effective Time, by virtue of the aforesaid assumption and the
delivery of this Third Supplemental Indenture, shall succeed to and be
substituted for and may exercise every right and power of the Company under the
Indenture with the same effect as if the Continuing Corporation had been named
as the Company in the Indenture.
SECTION 3. Representations and Warranties. The Continuing Corporation,
as of the date of execution of this Third Supplemental Indenture, represents and
warrants that:
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(i) it is a corporation organized and validly existing under the laws of the
State of North Carolina; (ii) it has full corporate power and authority to
execute and deliver this Third Supplemental Indenture and to perform its
obligations under this Third Supplemental Indenture in accordance with its
terms; and that (iii) the execution, delivery and performance of this Third
Supplemental Indenture will not violate, conflict with or constitute a breach
of, or a default under its articles of incorporation or by-laws, or any other
material agreement or instrument to which it is a party or which is binding on
it or its assets, and will not result in the creation of any lien on, or
security interest in, any of its assets.
SECTION 4. Covenants. All covenants and agreements in this Third
Supplemental Indenture by the Continuing Corporation shall bind its respective
successors and assigns, whether so expressed or not.
SECTION 5. Requests and Notices. Pursuant to Section 105 of the
Indenture, from and after the Effective Time, any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by the Indenture to be made upon, given or
furnished to, or filed with the Company shall be addressed to the Continuing
Corporation at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: General Counsel or at any other address previously furnished to the
Trustee by the Continuing Corporation.
SECTION 6. Separability. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 7. No Third Party Benefit. Nothing in this Third Supplemental
Indenture, express or implied, shall give to any Person, other than the parties
hereto and their successors under the Indenture, and the Holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under
the Indenture, as amended by this Third Supplemental Indenture.
SECTION 8. Continuance of Indenture; Effectiveness. This Third
Supplemental Indenture supplements the Indenture and shall be a part of and
subject to all the terms thereof. The Indenture as supplemented by this Third
Supplemental Indenture, shall continue in full force and effect. This Third
Supplemental Indenture shall become effective at the Effective Time.
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SECTION 9. Governing Law. This Third Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 10. Defined Terms. All capitalized terms used in this Third
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts, each of which so executed will be deemed
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
Attest: FIRST UNION CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Assistant Secretary Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Attest: FIRST UNION CORPORATION OF NEW JERSEY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Assistant Secretary Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Attest: THE CHASE MANHATTAN BANK,
AS Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TRUST OFFICER Title: Corporate Trust Officer
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