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Exhibit 4.4(b)
CHEMICAL BANKING CORPORATION,
THE CHASE MANHATTAN CORPORATION,
CHEMICAL BANK, as Resigning Trustee
AND
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Successor Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 29, 1996
to
AMENDED AND RESTATED INDENTURE
Dated as of September 1, 1993
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 29, 1996,
among CHEMICAL BANKING CORPORATION, a Delaware corporation ("Successor"), THE
CHASE MANHATTAN CORPORATION, a Delaware corporation ("Chase"), CHEMICAL BANK, a
banking corporation duly organized and existing under the laws of the State of
New York, as trustee ("Resigning Trustee"), and FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, an association duly organized and existing under the
federal laws of the United States ("Successor Trustee").
WHEREAS, Chase and Resigning Trustee have heretofore executed
and delivered a certain indenture, dated as of May 1, 1987 (the "Original
Indenture"), authorizing the issuance from time to time of subordinated debt
securities of Chase (the "Securities"), and supplements to the Original
Indenture in the form of a First Supplemental Indenture, dated as of May 1,
1991, a Second Supplemental Indenture, dated as of October 1, 1992, and a Third
Supplemental Indenture, dated as of September 1, 1993, the provisions of which
Third Supplemental Indenture are applicable only to Securities issued on or
after September 1, 1993 (other than the provisions that reflect the requirements
of the Trust Indenture Act) (the Original Indenture, as so supplemented by the
First, Second and Third Supplemental Indentures, the "Original Supplemented
Indenture");
WHEREAS, as of September 1, 1993, Chase and Resigning Trustee
restated the Original Supplemented Indenture pursuant to the terms thereof (the
Original Supplemented Indenture, as so restated, the "Indenture");
WHEREAS, Chase and Successor have entered into an Agreement
and Plan of Merger, dated as of August 27, 1995 (the "Merger Agreement"), which
contemplates the execution and filing of a Certificate of Merger, dated as of
March 29, 1996 (the "Certificate of Merger"), providing for the merger
(effective March 31, 1996) of Chase with and into Successor (the "Merger"), with
Successor continuing its corporate existence under Delaware law under the name
"The Chase Manhattan Corporation";
WHEREAS, Section 801 of the Indenture provides, among other
things, that Chase shall not merge into any other corporation unless the
corporation into which Chase 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 and any Additional Amounts with respect to
all the Securities and the performance of every covenant of the Indenture on the
part of Chase to be performed or observed;
WHEREAS, upon effectiveness of the Merger, Resigning
Trustee shall become a subsidiary of the issuer of the Securities
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under the Indenture and accordingly Resigning Trustee desires to resign pursuant
to Section 609(b) of the Indenture and Successor Trustee is willing to accept
appointment as successor Trustee under the Indenture;
WHEREAS, Sections 901(1) and 901(7), respectively, of the
Indenture provide, among other things, that, without the consent of the Holders,
Chase, when authorized by a Board Resolution of Chase, and the Trustee, at any
time and from time to time, may enter into an indenture supplemental to the
Indenture, in form satisfactory to the Trustee, for the purposes of (i)
evidencing the succession of Successor to Chase, and the assumption by Successor
of the covenants of Chase contained in the Indenture and the Securities and (ii)
evidencing and providing for the acceptance of appointment under the Indenture
by a successor Trustee;
WHEREAS, Successor and Chase desire and have requested that
Resigning Trustee and Successor Trustee join in the execution of this First
Supplemental Indenture for the purpose of (i) evidencing the succession and
assumption by Successor to Chase and the assumption by Successor of the
covenants of Chase contained in the Indenture and the Securities, (ii)
evidencing the resignation of the Resigning Trustee, (iii) appointing Successor
Trustee with respect to all Securities and evidencing acceptance of such
appointment by Successor Trustee and (iv) amending certain provisions of the
Indenture in connection with such succession and assumption, and such
appointment and acceptance, as hereinafter set forth;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by Board Resolutions of the Boards of Directors of
Chase and Successor and have been duly authorized by all necessary action on the
part of Resigning Trustee and Successor Trustee; and
WHEREAS, all conditions precedent and requirements necessary
to make this First Supplemental Indenture a valid and legally binding instrument
in accordance with its terms have been complied with, performed and fulfilled
and the execution and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and intending to be
legally bound hereby, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Securities, as follows:
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ARTICLE ONE
REPRESENTATIONS AND COVENANTS OF RESIGNING TRUSTEE
SECTION 1.1. Pursuant to Section 609(b) of the Indenture,
Resigning Trustee hereby notifies Chase that Resigning Trustee is hereby
resigning as Trustee under the Indenture.
SECTION 1.2. Resigning Trustee hereby represents and warrants
to Successor Trustee that:
(a) No covenant or condition contained in the
Indenture has been waived by Resigning Trustee or,
to the best of the knowledge of the Responsible
Officers assigned to Resigning Trustee's Corporate
Trustee Administration Department, by the Holders
of the percentage in aggregate principal amount of
Securities of any series required by the Indenture
to effect any such waiver.
(b) There is no action, suit or proceeding pending or,
to the best of the knowledge of the Responsible
Officers assigned to Resigning Trustee's Corporate
Trustee Administration Department, threatened
against Resigning Trustee before any court or any
governmental authority arising out of any action
or omission by Resigning Trustee as Trustee under
the Indenture.
(c) To the best of the knowledge of the Responsible
Officers assigned to the Resigning Trustee's
Corporate Trustee Administration Department, no event
has occurred and is continuing which is, or after
notice or lapse of time or both would become, an
Event of Default under Section 501 of the Indenture.
SECTION 1.3. Resigning Trustee hereby assigns, transfers,
delivers and confirms to Successor Trustee all right, title and interest of
Resigning Trustee in and to the trust under the Indenture; all the rights,
powers, trusts and duties of the Trustee under the Indenture; and all property
and money held by Resigning Trustee under the Indenture, subject nevertheless to
Resigning Trustee's lien, if any, provided for in Section 607 of the Indenture.
Resigning Trustee shall execute and deliver such further instruments and shall
do such other things as Successor Trustee may reasonably require so as to more
fully and certainly vest and confirm in Successor Trustee all the rights,
trusts, powers and duties hereby assigned, transferred, delivered and confirmed
to Successor Trustee.
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ARTICLE TWO
REPRESENTATIONS OF AND ACCEPTANCE BY SUCCESSOR TRUSTEE
SECTION 2.1. Successor Trustee hereby represents and warrants
to Resigning Trustee and to Chase and Successor that Successor Trustee is not
disqualified under the provisions of Section 608 of the Indenture and is
eligible under the provisions of Section 609 of the Indenture to act as Trustee
under the Indenture.
SECTION 2.2. Successor Trustee hereby accepts its appointment
as successor Trustee under the Indenture and accepts the rights, powers, trusts,
duties and obligations of Resigning Trustee as Trustee under the Indenture, upon
the terms and conditions set forth therein, with like effect as if originally
named as Trustee under the Indenture.
ARTICLE THREE
REPRESENTATIONS AND COVENANTS OF CHASE AND SUCCESSOR
SECTION 3.1. Each of Chase and Successor represents and
warrants to Resigning Trustee and Successor Trustee as follows:
(a) It is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by it of
this First Supplemental Indenture have been authorized and approved by
all necessary corporate action on the part of it.
(c) Upon the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware or at such other time
thereafter as is provided in the Certificate of Merger (the "Effective
Time"), the Merger will be effective in accordance with the terms of
the Merger Agreement and Delaware law.
(c) Immediately after the Merger, no Event of Default
or 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.
SECTION 3.2 Each of Chase and Successor hereby appoints
Successor Trustee as Trustee under the Indenture to succeed to, and hereby vests
Successor Trustee with, all the rights, powers, trusts, duties and obligations
of Resigning
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Trustee under the Indenture with like effect as if originally named as Trustee
in the Indenture.
SECTION 3.3. Promptly after the effectiveness of this First
Supplemental Indenture, Successor shall, in accordance with the provisions of
Section 609(f) of the Indenture, cause a notice, substantially in the form of
Exhibit A annexed hereto, (i) to be sent to each Holder of Registered
Securities, (ii) to be published in an Authorized Newspaper in each Place of
Payment located outside of the United States with respect to Bearer Securities
and (iii) if any Holder of Bearer Securities has filed its name and address with
the Trustee within the two years preceding the issuance of such notice, to be
sent to such Holder as its name and address appears in such filing.
SECTION 3.4. Notwithstanding the resignation, appointment and
acceptance effected by this First Supplemental Indenture, Successor shall remain
obligated under Section 607 of the Indenture to compensate, reimburse and
indemnify Resigning Trustee in connection with its trusteeship under the
Indenture.
ARTICLE FOUR
ASSUMPTION BY SUCCESSOR
SECTION 4.1. Successor hereby expressly assumes the due and
punctual payment of the principal of, premium, if any, and interest on and any
Additional Amounts with respect to all the Securities and the performance of
every covenant of the Indenture to be performed or observed by Chase.
SECTION 4.2. The Securities may bear a notation concerning the
assumption of the Indenture and the Securities by Successor.
SECTION 4.3. Successor shall succeed to and be substituted for
Chase under the Indenture, with the same effect as if Successor had been named
as the "Company" therein.
ARTICLE FIVE
AMENDMENTS
SECTION 5.1. (a) The reference in the first paragraph of the
Indenture to "THE CHASE MANHATTAN CORPORATION, a Delaware corporation
(hereinafter called the "Company") having its principal office at 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000" is hereby amended to read "THE CHASE
MANHATTAN CORPORATION, formerly known as Chemical Banking Corporation, a
Delaware corporation (hereinafter called the "Company") having its principal
office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
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10017" and each other reference therein to "The Chase Manhattan Corporation"
shall be amended to read "The Chase Manhattan Corporation, formerly known as
Chemical Banking Corporation"; (b) the reference in the first paragraph of the
Indenture to "CHEMICAL BANK, a corporation organized and existing under the laws
of the State of New York" is hereby amended to read "FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, a national association organized and existing under the
federal laws of the United States" and each other reference therein to "Chemical
Bank" shall be amended to read "First Trust of New York, National Association";
(c) the reference to "450 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000" in the
definition of "Corporate Trust Office" in Section 101 of the Indenture is hereby
amended to read "100 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000"; and (d)
the reference to "Corporate Trustee Administration Department" in clause (1) of
Section 105 of the Indenture is hereby amended to read "Corporate Trust
Administration".
SECTION 5.2. Except as amended hereby, the Indenture and the
Securities are in all respects ratified and confirmed and all the terms thereof
shall remain in full force and effect and the Indenture, as so amended, shall be
read, taken and construed as one and the same instrument.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.1. Resigning Trustee and Successor Trustee each
accepts the modification of the Indenture effected by this First Supplemental
Indenture, but only upon the terms and conditions set forth in the Indenture.
Without limiting the generality of the foregoing, neither Resigning Trustee nor
Successor Trustee assumes any responsibility for the correctness of the recitals
herein contained, which shall be taken as the statements of Chase and Successor.
Neither Resigning Trustee nor Successor Trustee makes any representation and
shall have no responsibility as to the validity and sufficiency of this First
Supplemental Indenture, other than Articles One and Two hereof, as applicable.
SECTION 6.2. If and to the extent that any provision of this
First Supplemental Indenture limits, qualifies or conflicts with another
provision included in this First Supplemental Indenture, or in the Indenture,
which is required to be included in this First Supplemental Indenture or the
Indenture by any of the provisions of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, as amended, such required provision shall control.
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SECTION 6.3. Nothing in this First Supplemental Indenture is
intended to or shall provide any rights to any parties other than those
expressly contemplated by this First Supplemental Indenture.
SECTION 6.4. Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Indenture.
SECTION 6.5. This First Supplemental Indenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 6.6. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 6.7. This First Supplemental Indenture shall become
effective as of March 31, 1996.
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IN WITNESS WHEREOF, the parties hereto have caused this First
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.
THE CHASE MANHATTAN
CORPORATION
By /s/ Arjun X. Xxxxxxxx
---------------------------------
Name: Arjun X. Xxxxxxxx
Title: Executive Vice
President and
Chief Financial
Officer
(Corporate Seal)
Attest:
/s/ Xxxxxx X. Xxxxx
------------------------------------
Secretary
CHEMICAL BANKING CORPORATION
By /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
(Corporate Seal)
Attest:
/s/ Xxxx X. Xxxxxx
------------------------------------
Assistant Secretary
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CHEMICAL BANK,
as Resigning Trustee
By /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
(Corporate Seal)
Attest:
------------------------------
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Successor Trustee
By /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice
President
(Corporate Seal)
Attest:
/s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
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XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this 22d day of March, 1996, before me, the undersigned
officer, personally appeared Arjun X. Xxxxxxxx, who acknowledged himself to be
the Executive Vice President and Chief Financial Officer of THE CHASE MANHATTAN
CORPORATION, a corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 22nd day of March, 1996, before me, the undersigned
officer, personally appeared Xxxx X. Xxxxx, who acknowledged himself to be the
Secretary of CHEMICAL BANKING CORPORATION, a corporation, and that he as such
officer, being authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx X.X. Xxxxx
------------------------------
Notary Public
[SEAL]
