Exhibit (4)(e)(ii)
SECOND SUPPLEMENTAL INDENTURE, dated as of January 1, 1996 among FIRST
FIDELITY BANCORPORATION, a corporation duly organized and existing under the
laws of the State of New Jersey (the "Company"), having its principal offices at
000 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 and at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, 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, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of April 1, 1988, as Supplemented by the First
Supplemental Indenture, dated as of June 14, 1993 (the "Indenture"), providing
for the issuance from time to time of the Company'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 the Agreement and Plan of Merger dated as of June 18,
1995, as amended (the "Merger Agreement"), among the Company, FUNC-NJ and First
Union Corporation, the Company is merging (the "Merger") with and into FUNC-NJ
effective January 1, 1996 (or on such other date as the parties may agree), the
separate existence of the Company shall cease and FUNC-NJ shall survive and
continue to exist as a New Jersey corporation (the "Continuing Corporation");
WHEREAS, Section 801 of the Indenture provides, in part, that the Company
shall not merge into another corporation unless the corporation into which the
Company 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, the Company, 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 the Company and
the assumption by any such successor of the covenants of the Company in the
Indenture and in the Securities;
WHEREAS, the Company has delivered to the Trustee (i) an Officers'
Certificate and an Opinion of Counsel, each stating that the Merger and this
Second 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 Second Supplemental Indenture have been complied with and (ii)
a copy of the Board Resolution authorizing the execution of supplemental
indentures including this Second Supplemental Indenture;
WHEREAS, immediately after giving effect to the Merger and treating any
indebtedness which becomes an obligation of the Company or a 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, shall have happened
and be continuing; and
WHEREAS, all things necessary to authorize the assumption by the Continuing
Corporation of the Company's obligations under the Indenture and to make this
Second 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 Merger
Agreement) 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 Second 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
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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 Second Supplemental Indenture, represents and
warrants that: (i) it is a corporation organized and validly existing under the
laws of the State of New Jersey; (ii) it has full corporate power and authority
to execute and deliver this Second Supplemental Indenture and to perform its
obligations under this Second Supplemental Indenture in accordance with its
terms; and that (iii) the execution, delivery and performance of this Second
Supplemental Indenture will not violate, conflict with or constitute a breach
of, or a default under the 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 Second
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,
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 Second 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 Second 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 Second Supplemental Indenture.
SECTION 8. Continuance of Indenture. This Second Supplemental Indenture
supplements the Indenture and shall
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be a part of and subject to all the terms thereof. The Indenture, as
supplemented by this Second Supplemental Indenture, shall continue in full force
and effect. This Second Supplemental Indenture shall become effective at the
Effective Time.
SECTION 9. Governing Law. This Second 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 Second
Supplemental Indenture shall have the same meanings assigned to them in the
Indenture.
SECTION 11. Counterparts. This Second 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 Second 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 FIDELITY BANCORPORATION
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Assistant Secretary Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
Attest: FIRST UNION CORPORATION OF NEW JERSEY
/s/ Xxxxx X. Xxxxxx By:/s/ Xxxx X. Xxxxxxxx
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Assistant Secretary Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Attest: THE CHASE MANHATTAN BANK N.A.
AS TRUSTEE
By:/s/ Sheik Wiltshire
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Name: Sheik Wiltshire
Title: Second Vice President
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