CALCULATION AGENCY AGREEMENT
Between
FIRST UNION NATIONAL BANK
and
FIRST UNION CORPORATION
This Calculation Agency Agreement (the "Agreement"), dated as
of April 23, 1998, is made between FIRST UNION CORPORATION (the "Company") and
FIRST UNION NATIONAL BANK (the "Calculation Agent").
The Company proposes to issue and sell its 6.30%
Putable/Callable Subordinated Notes Due April 15, 2028 (the "Notes"), described
in a Prospectus Supplement dated April 16, 1998 (the "Prospectus Supplement"),
to the Prospectus dated September 5, 1997 (the "Prospectus"), and issued
pursuant to an Indenture, dated as of March 15, 1986, between the Company and
Xxxxxx Trust and Savings Bank, as successor Trustee (the "Trustee"), as amended
and supplemented by supplemental indentures, dated as of August 1, 1990,
November 15, 1992 and February 7, 1996 (as so amended and supplemented, the
"Indenture"), in an aggregate principal amount of $200,000,000. The Notes will
be issued and the terms thereof established in accordance with the Indenture,
the form of Global Note (the "Form of Note"), the Prospectus Supplement and the
Prospectus included in the registration statement on Form S-3 filed with the
Securities and Exchange Commission (the "Commission") (Registration No.
333-34151). The Company may from time to time file with the Commission one or
more post-effective amendments to such registration statement, or amended or
supplemented prospectuses, or additional registration statements and
prospectuses relating to the Notes. The interest rate on the Notes will be 6.30%
upon issuance and may be reset in accordance with the Form of Note attached
hereto as Appendix A. Capitalized terms used but not defined herein shall have
the same meanings as in the Form of Note.
SECTION 1. Appointment of Calculation Agent. The Company
hereby appoints First Union National Bank as the Calculation Agent for the
purpose of calculating the Coupon Reset Rate, the Floating Coupon Reset Rate and
the New Coupon Reset Rate (each as defined in the Form of Note) and of making
the other calculations and determinations, and of giving the notices and
conducting the other activities and obligations called for, by the Calculation
Agent, all as
provided in and in accordance with the provisions of the
Form of Note and this Agreement.
SECTION 2. Status of Calculation Agent. Any acts taken by the
Calculation Agent under this Agreement or in connection with any Notes,
including, specifically, but without limitation, the calculation of any interest
rate for the Notes, shall be deemed to have been taken by the Calculation Agent
solely in its capacity as an agent acting on behalf of the Company and shall not
create or imply any obligation to, or any agency or trust relationship with, any
of the owners or holders of the Notes.
SECTION 3. Rights and Liabilities of the Calculation Agent.
The Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any certificate,
affidavit, instruction, notice, request, direction, order, statement or other
paper, document or communication reasonably believed by it to be genuine. Any
order, certificate, affidavit, instruction, notice, request, direction,
statement or other communication from the Company made or given by it and sent,
delivered or directed to the Calculation Agent under, pursuant to, or as
permitted by, any provision of this Agreement shall be sufficient for purposes
of this Agreement if such communication is in writing and signed by any officer
or attorney-in-fact of the Company. The Calculation Agent may consult with
counsel satisfactory to it and the advice of such counsel shall constitute full
and complete authorization and protection of such Calculation Agent with respect
to any action taken, omitted to be taken or suffered by it hereunder in good
faith and in accordance with and in reliance upon the advice of such counsel.
SECTION 4. Right of Calculation Agent to Own Notes. The
Calculation Agent, in its individual capacity, and its officers, employees and
shareholders, may buy, sell, hold and deal in the Notes and may exercise any
vote or join in any action which any holder of the Notes may be entitled to
exercise or take as if it were not the Calculation Agent. The Calculation Agent,
in its individual capacity as such, may also engage in or have an interest in
any transaction with the Company or its affiliates as if it were not the
Calculation Agent.
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SECTION 5. Duties of Calculation Agent. In acting under this
Agreement in connection with the Notes, the Calculation Agent shall be obligated
only to perform such duties as are specifically set forth herein or in the Form
of Note and no other duties or obligations on the part of such Calculation
Agent, in its capacity as such, shall be implied by this Agreement. In acting
under this Agreement, the Calculation Agent (in its capacity as such) assumes no
obligation towards, or any relationship of agency or trust for or with, the
holders of the Notes.
SECTION 6. Resignation of the Calculation Agent. (a) The
Calculation Agent may at any time resign as Calculation Agent by giving written
notice to the Company (with a copy to the Trustee) of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall not be earlier than 30 days
after the receipt of such notice by the Company, unless the Company agrees in
writing to accept less notice. The Company may remove the Calculation Agent at
any time by filing with the Calculation Agent (with a copy to the Trustee) any
instrument in writing signed on behalf of the Company and specifying such
removal, the reasons for such removal and the date when such removal is intended
to become effective. Such resignation or removal shall take effect upon the date
of the appointment by the Company, as hereinafter provided, of a successor
Calculation Agent. If at least 60 days after notice of resignation or removal
has been given a successor Calculation Agent has not been appointed, the
Calculation Agent may petition a court of competent jurisdiction to appoint a
successor Calculation Agent. A successor Calculation Agent shall be appointed by
the Company by an instrument in writing signed on behalf of the Company and the
successor Calculation Agent. Upon the appointment of a successor Calculation
Agent and acceptance by it of such appointment, the Calculation Agent so
superseded shall cease to be such Calculation Agent hereunder. Upon its
resignation or removal, the Calculation Agent shall be entitled to the
reimbursement of all reasonable out-of-pocket expenses incurred in connection
with the services rendered hereunder by it as Calculation Agent.
(b) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Company and the Trustee an
instrument accepting such appointment hereunder and agreeing to perform the
functions
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and obligations of the Calculation Agent under the Notes and the obligations of
the Calculation Agent under this Agreement and to be bound by this Agreement
and, to the extent relating to it, the Form of Note, and thereupon such
successor Calculation Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
such Calculation Agent hereunder, and such predecessor Calculation Agent, upon
payment of its charges and disbursements then unpaid, shall thereupon become
obliged to transfer and deliver, and such successor Calculation Agent shall be
entitled to receive and the predecessor Calculation Agent shall provide, copies
of any relevant records maintained by such predecessor Calculation Agent.
(c) Any corporation, partnership, limited liability company or
other entity into which the Calculation Agent may be merged or converted or with
which the Calculation Agent may be consolidated, or any corporation,
partnership, limited liability company or other entity resulting from any
merger, conversion or consolidation to which the Calculation Agent shall be a
party, shall, to the extent permitted by applicable law, be the successor
Calculation Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto provided that
such successor Calculation Agent shall assume, or be deemed to have assumed, all
of the obligations and liabilities of its predecessor under this Agreement and,
to the extent relating to it, under the Form of Note. Notice of any such merger,
conversion, consolidation or sale shall forthwith be given to the Company and
the Trustee.
(d) The indemnity, reimbursement and other provisions of this
Agreement will survive any resignation or removal of the Calculation Agent. The
agreements of the parties set forth herein will be binding upon and inure to the
benefit of their respective successors.
SECTION 7. No Purchase of the Notes by the Company.
Notwithstanding any provision to the contrary set forth in the Indenture, the
Company will not purchase any Notes in the open market, by tender offer, in a
private transaction or otherwise, except pursuant to any purchase obligation it
may have under the Notes, with the prior
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consent of the Callholder or pursuant to the terms of the
Notes.
SECTION 8. Book-entry Notes. Notwithstanding any provision to
the contrary set forth in the Notes or the Indenture, the Company (i) will use
its reasonable best efforts to maintain the Notes in book-entry form with The
Depository Trust Company ("DTC") or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the Notes in book-entry
form and (ii) will waive any discretionary right it otherwise has under the
Indenture to cause the Notes to be issued in certificated form. The Company will
perform its obligations, and pursue its rights against DTC, under the DTC Letter
of Representations dated April 23, 1998 among the Company, First Union National
Bank and DTC.
SECTION 9. No Amendment of Notes or Indenture. Notwithstanding
any provision to the contrary set forth in the Indenture, the Company will not
cause or permit the provisions of any Note (or the Indenture, as it relates to
any Note) to be modified in any way without the prior consent of the Callholder.
SECTION 10. Indemnification. The Company shall indemnify and
hold harmless First Union National Bank, or any successor Calculation Agent
thereof, and their respective officers and employees from and against all
actions, claims, damages, liabilities and losses, and costs and expenses related
thereto (including but not limited to reasonable legal fees and costs) relating
to or arising out of actions or omissions in any capacity hereunder, except
actions, claims, damages, liabilities, losses, costs and expenses caused by the
bad faith, gross negligence or wilful misconduct of First Union National Bank,
or any successor Calculation Agent, or their respective officers or employees.
This Section shall survive the termination of the Agreement and the payment in
full of all obligations under the Notes, whether by redemption, repayment or
otherwise.
SECTION 11. Notices. Any notice or other communication
required to be given hereunder shall be delivered in person, sent by letter,
telecopy or telex or communicated by telephone (subject, in the case of
communication by telephone, to written confirmation dispatched within
twenty-four (24) hours) to the addresses
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given below or such other address as each party hereto may subsequently
designate in writing.
To the Company:
First Union Corporation
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
To the Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Division
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
To the Calculation Agent:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone No: (000) 000-0000
Telecopy No.: (000) 000-0000
Any notice hereunder given by telecopy or telex shall be deemed to have been
given when transmitted. Any notice hereunder given by letter shall be deemed to
have been given five business days after mailing such notice.
SECTION 12. Benefit of Agreement. Except as provided herein,
this Agreement is solely for the benefit of the parties hereto and their
successors and assigns, and no other person shall acquire or have any rights
under or by virtue hereof. The terms "successors" and "assigns" shall not
include any purchasers of any Notes merely because of such purchase.
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SECTION 13. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements entered into and performed in such State.
SECTION 14. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
SECTION 15. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same instrument.
SECTION 16. Amendments. This Agreement may be amended by any
instrument in writing executed and delivered by each of the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been entered into as of
the 23rd day of April, 1998.
FIRST UNION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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Appendix A
(Form of Note)
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