Exhibit (4)(a)(ii)
THIRD SUPPLEMENTAL INDENTURE, dated as of April 28, 1998 among CoreStates
Capital Corp, a corporation duly organized and validly existing under the laws
of the Commonwealth of Pennsylvania ("CoreStates Capital"), CoreStates Financial
Corp, a corporation duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania ("CoreStates"), First Union Corporation, a
corporation duly organized and validly existing under the laws of the State of
North Carolina ("FUNC"), Bank One, NA, a national banking association organized
under the laws of the United States of America, as the original trustee (the
"Original Trustee"), and Citibank, N.A., a national banking association
organized under the laws of the United States of America, as the new trustee
(the "New Trustee" and, together with the Original Trustee, the "Trustees").
R E C I T A L S
WHEREAS, CoreStates Capital and CoreStates heretofore executed and
delivered to the Trustees an Indenture, dated as of December 1, 1990, as
supplemented by the First Supplemental Indenture thereto, dated as of March 1,
1993, and the Second Supplemental Indenture thereto, dated as of August 1, 1994
(as supplemented, the "Indenture"), providing for the issuance from time to time
of CoreStates Capital's unsecured and subordinated 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 the terms of the Indenture, CoreStates guaranteed the
obligations of CoreStates Capital under the Indenture and the Securities;
WHEREAS, pursuant to an Agreement and Plan of Mergers, dated as of November
18, 1997, between CoreStates and FUNC (the "Parent Plan"), CoreStates is merging
(the "Parent Merger") with and into FUNC, the separate existence of CoreStates
shall cease and FUNC shall survive and continue to exist as a North Carolina
corporation (the "Continuing Corporation");
WHEREAS, pursuant to an Agreement and Plan of Merger between FUNC and
CoreStates Capital (the "Sub Plan"), after the Parent Merger and on or about May
15, 1998, CoreStates Capital is merging (the "Sub Merger") with and into FUNC,
the separate existence of CoreStates Capital shall cease and FUNC shall survive
and continue to exist as the Continuing Corporation;
WHEREAS, Section 903 of the Indenture provides, in part, that CoreStates
shall not merge into another corporation unless the corporation into which
CoreStates is
merged shall expressly assume, by an indenture supplemental to the Indenture,
executed and delivered to the Trustees, in form satisfactory to the Trustees,
the Guarantee endorsed on the Securities and the performance of every covenant
of the Indenture on the part of CoreStates to be performed or observed;
WHEREAS, Section 901 of the Indenture provides, in part, that CoreStates
Capital shall not merge into another corporation unless the corporation into
which CoreStates Capital is merged shall expressly assume, by an indenture
supplemental to the Indenture, executed and delivered to the Trustees, in form
satisfactory to the Trustees, the due and punctual payment of the principal of
(and premium, if any) and interest on and Additional Amounts in respect of all
the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed;
WHEREAS, Section 1001 (1) of the Indenture provides that, without the
consent of any Holders, CoreStates and CoreStates Capital, when authorized by
Board Resolutions, and the Trustees, at any time and from time to time, may
enter into a supplemental indenture to evidence the succession of another
corporation to CoreStates and CoreStates Capital and the assumption by any such
successor of the covenants, agreements and obligations of CoreStates and
CoreStates Capital in the Indenture and in the Securities;
WHEREAS, each of CoreStates and CoreStates Capital has delivered, or caused
to be delivered on its behalf, to the Trustees (i) an Officers' Certificate and
an Opinion of Counsel, each stating that the Parent Merger and the Sub Merger,
as applicable, and this Third Supplemental Indenture comply with Article Nine
and the applicable provisions of Article Ten of the Indenture, all conditions
precedent provided for in the Indenture relating to the Parent Merger and the
Sub Merger, as applicable, and the execution and delivery of this Third
Supplemental Indenture have been complied with, and, with respect to the Parent
Merger, that the Guarantees remain in full force and effect and (ii) a copy of
the Board Resolution authorizing the execution of this Third Supplemental
Indenture;
WHEREAS, immediately after giving effect to the Parent Merger and the Sub
Merger and treating any indebtedness which becomes an obligation of the
Guarantor and the Company or any Subsidiary as a result of the Parent Merger and
the Sub Merger as having been incurred by the Guarantor and the Company or any
such Subsidiary at the time of the Parent Merger and the Sub Merger, no default,
and no
event which, after notice or lapse of time or both, would become a default shall
have happened and be continuing; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of CoreStates' obligations as Guarantor under the Indenture and
CoreStates Capital'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 Parent
Plan) of the Parent Merger, and the effective date (the "Effective Date") of
the Sub Merger, as applicable, (i) the Guarantees endorsed on the Securities and
the performance of every covenant of the Indenture on the part of CoreStates to
be performed or observed and (ii) the due and punctual payment of the principal
of (and premium, if any) and interest on and Additional Amounts in respect of
all the Securities and the performance of every covenant of the Indenture on the
part of CoreStates Capital to be performed or observed.
SECTION 2. Succession and Substitution. The Continuing Corporation, from
and after the Effective Time and the Effective Date, by virtue of the aforesaid
assumptions and the delivery of this Third Supplemental Indenture, shall succeed
to and be substituted for and may exercise every right and power of the
Guarantor and the Company under the Indenture with the same effect as if the
Continuing Corporation had been named as the Guarantor and the Company in the
Indenture; provided, however, that upon consummation of the Sub Merger and the
aforesaid assumption provided in Section l(ii) above, the Guarantee shall no
longer be applicable and the Continuing Corporation shall be the sole obligor
under the Indenture and the Securities.
SECTION 3. Representations and Warranties. The Continuing Corporation, as
of the date of execution of this Third Supplemental Indenture, represents and
warrants that: (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 and the Effective Date, 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 Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
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, with respect to matters
relating to the Parent Merger, and the Effective Date, with respect to matters
relating to the Sub Merger.
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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: CORESTATES FINANCIAL CORP
Xxxxxxxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Assistant Secretary Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
& Treasurer
Attest: CORESTATES CAPITAL CORP
Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------
Assistant Secretary Name: Xxxxxx X. Xxxxx
Title: Vice President & Treasurer
Attest: FIRST UNION CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- --------------------------
Assistant Secretary Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Attest: BANK ONE, NA,
AS Trustee
/s/ Xxxxxxx Xxxx By: /s/ Xxxxxxxx Xxxxxxx
-------------------------- --------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signer
Attest: CITIBANK, NA,
AS Trustee
By: /s/ Xxxxx Xx
-------------------------- --------------------------
Senior Trust Officer Name: Xxxxx Xx
Title: Vice President
