Exhibit (4)(i)(ii)
FIRST UNION CORPORATION OF VIRGINIA,
FIRST UNION CORPORATION
AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
Dated: as of May 10, 1993
Supplemental to Indenture,
dated as of June 24, 1987
as amended by,
Supplemental Indenture,
dated as of January 1, 1993
relating to
9-5/8% Subordinated Capital Notes Due 1999
This Supplemental Indenture, dated as of May 10, 1993, between First Union
Corporation of Virginia, a Virginia corporation (the "Company"), First Union
Corporation, a North Carolina corporation ("the Guarantor"), and Xxxxxx Guaranty
Trust Company of New York, a New York corporation (the "Trustee").
WITNESSETH
Whereas, pursuant to a Supplemental Indenture, dated as of January 1, 1993
between Dominion Bankshares Corporation ("Dominion"), the Company and the
Trustee, the Company succeeded to the obligations of Dominion under an
Indenture, dated as of June 24, 1987, between Dominion and the Trustee (as
amended by such Supplemental Indenture, the "Indenture"), pursuant to which
Dominion issued its 9-5/8% Subordinated Capital Notes Due 1999, limited in
aggregate principal amount to $75,000,000 (the "Securities"); and
Whereas, the Company is a wholly owned subsidiary of the Guarantor, and
the Guarantor wishes to guarantee, on a subordinated basis, the Company's
obligations pursuant to the Indenture and the Securities; and
Whereas, the Company has authorized the execution and delivery of this
Supplemental Indenture by a Board Resolution, as defined in the Indenture; and
Whereas, the Guarantor has authorized the execution and delivery of this
Supplemental Indenture by a resolution of its board of directors; and
Whereas, pursuant to Section 901 of the Indenture, the execution and
delivery of this Supplemental Indenture by the Company, the Guarantor and the
Trustee does not require the consent of any holder of the Securities; and
Whereas, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, binding and legal instrument have been done,
performed and fulfilled, and the execution and delivery hereof have in all
respects been duly authorized;
Now Therefore, the Company, the Guarantor and the Trustee hereby agree as
follows:
1. Section 101 of the Indenture is hereby amended by the insertion of the
following definitions in the appropriate alphabetical order:
"Existing Guarantor Subordinated Indebtedness" means the Guarantor's
(i) Fixed Rate Medium-Term Subordinated Notes; (ii) Floating Rate
Subordinated Notes due April 1, 1996; (iii) 11 Percent and Variable
Rate Subordinated Notes due in either 1993 or 1996 (iv) 8-1/8 Percent
Subordinated Notes due December 15, 1996; (v) 9.45 Percent Subordinated
Notes due June 15, 1999; (vi) 9.45 Percent Subordinated Notes due
August 15, 2001; (vii) 8-1/8 Percent Subordinated Notes Due June 24,
2002; and (viii) 8 Percent Subordinated Notes due November 15, 2002.
"Guarantor" means First Union Corporation, a North Carolina
Corporation, until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor Order" means a written order signed in the name of the
Guarantor by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Controller,
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an Assistant Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Guarantor Senior Indebtedness" means the principal of and premium, if
any, and interest on (a) all indebtedness for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, except (i) the Guaranty; (ii) Existing
Guarantor Subordinated Indebtedness; (iii) the obligations of the
Guarantor under securities issued pursuant to the indenture, dated as
of March 15, 1986, between the Guarantor and The Bank of New York; (iv)
such indebtedness as is by its terms expressly stated to be junior in
right of payment to the Guaranty and (v) such indebtedness as is by its
terms expressly stated to be not superior in right of payment to the
Guaranty or to rank pari passu in right of payment with the Guaranty;
and (b) any deferrals, renewals or extensions of any such Guarantor
Senior Indebtedness.
"Guaranty" means the Guarantor's unconditional guarantee, on a
subordinated basis, of the payment of the Securities, as provided in
Article Three-A.
2. The definition of "indebtedness for money borrowed" in Section 101 of
the Indenture is hereby amended by deleting the first reference to "the Company"
in such definition and replacing it with a reference to "the Company or the
Guarantor", and by deleting each other reference to "the Company" in such
definition and replacing it with a reference to "the Company or the Guarantor,
as the case may be,".
3. The definition of "Officer's Certificate" in Section 101 of the
Indenture is hereby amended as restated in its entirety as follows:
"Officers' Certificate" means, (i) with respect to the Company, a
certificate signed by the Chairman of the Board, the President, any
Vice Chairman
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or Vice President, and by the Treasurer, an Assistant Treasurer, the
Corporate Secretary or the Assistant Corporate Secretary, of the
Company, and delivered to the Trustee or the Exchange Agent, as the
case may be; and (ii) with respect to the Guarantor, a certificate
signed by the Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the
Guarantor, and delivered to the Trustee or the Exchange Agent, as the
case may be.
4. The definition of "Opinion of Counsel" in Section 101 of the Indenture
is hereby amended and restated in its entirety as follows:
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Guarantor, or other
counsel who shall be acceptable to the Trustee.
5. The Indenture is hereby amended by the insertion of the following
Section at the end of Article Two:
Section 205. Form of Guaranty.
Each Security executed, authenticated and delivered on or after May 10,
1993 shall be imprinted with the following legend:
This Security is fully and unconditionally guaranteed, on a
subordinated basis, by First Union Corporation, a North Carolina
corporation, in accordance with the terms of the Indenture.
Notwithstanding any other provision of this Indenture to the contrary,
any Security executed, authenticated and delivered prior to May 10, 1993 shall
be entitled to the benefits of the Guaranty, regardless of whether the foregoing
legend appears on such Security.
6. The Indenture is hereby amended by the insertion of the following
Article Three-A after the existing Article Three:
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ARTICLE THREE-A
The Guaranty
Section 301-A. Unconditional Guaranty.
The Guarantor hereby fully and unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee hereunder, the due and
punctual payment of the principal of and interest on such Security when and as
the same shall become due and payable, whether at Stated Maturity or by
declaration of acceleration or otherwise, according to the terms of such
Security and of this Indenture. In case of the failure of the Company
punctually to pay any such principal or interest, the Guarantor hereby agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by declaration of
acceleration, or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or this Indenture, any failure to enforce the
provisions of said Security or this Indenture, or any waiver, modification,
consent or indulgence granted to the Company with respect thereto, by the
Holder of said Security or the Trustee under this Indenture (unless the same
shall also be provided to the Guarantor), the recovery of any judgment against
the Company or any action to enforce the same, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor. The Guarantor hereby also agrees that its obligations hereunder
shall be unaffected by the provisions of Article Twelve and the subordination
provisions of the Securities in favor of the Senior Indebtedness of the
Company. The Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger, insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that the Guaranty will not be
discharged except by payment in full of the principal of and interest on the
Securities and the complete performance of all other obligations contained in
the Securities.
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The Guaranty shall be subordinate in right of payment to Guarantor Senior
Indebtedness as provided in Article Twelve-A.
The Guarantor shall be subrogated to all rights of the Holders of any
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of the Guaranty; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of and
interest on all Securities issued hereunder shall have been paid in full.
7. Section 502 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor" in the sixth line of the first paragraph thereof
following the word "Company"; (ii) inserting a comma and the words "the
Guarantor" in the fourth line of the second paragraph thereof following the
word "Company"; and (iii) inserting the words "or the Guarantor" after the word
"Company" in subparagraph (1) thereof.
8. Section 503 of the Indenture is hereby amended by inserting a comma and
the words "the Guarantor" in the ninth and twelfth lines of the penultimate
paragraph thereof following the word "Company."
9. Section 504 of the Indenture is hereby amended by (i) inserting a comma
and the words "the Guarantor" in the third and fourth lines of the first
paragraph thereof, in each case following the word "Company" and (ii) inserting
the words "or the Guarantor" in the seventh line thereof following the word
"Company."
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10. Section 515 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor each" in the first and fifth lines thereof, following
the word "Company," (ii) replacing the word "covenants" with the word "covenant"
in the first and sixth lines thereof, and (iii) replacing the word "waives" with
the word "waive" in the sixth line thereof.
11. Section 607 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor" following the word "Company" in the first line
thereof, (ii) replacing the word "agrees" with the word "agree" in the first
line thereof, and (iii) inserting the words "and the Guarantor" in the sixth
line of subparagraph (3) thereof following the word "Company."
12. The Indenture is hereby amended by the insertion of the following
paragraphs at the end of Article Eight:
Section 803. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) in case the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Guarantor substantially as an entirety shall be a
corporation, partnership or trust, shall be organized
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and validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Guarantor to be
performed or observed;
(2) immediately after giving effect to such transaction, 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; and
(3) the Guarantor has delivered to the Trustee an Officers' Certificate
and a Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 804. Successor Substituted.
Upon any consolidation of the Guarantor with, or merger by the Guarantor
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Guarantor substantially as an entirety in accordance with
Section 803, the successor Person formed by such consolidation or into which
the Guarantor is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Guarantor herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Guaranty.
13. The penultimate paragraph of Section 1003 of the Indenture is hereby
amended by (i) inserting the words "or the Guarantor" after the words "The
Company" at the beginning of such paragraph, (ii) inserting the words "or
Guarantor Order, as the case may be" after the words
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"Company Order" at the end of the second line thereof, and (iii) by replacing
the word "and" with the word "any" between the words "direct" and "paying Agent"
in the third line thereof.
14. Section 1004 of the Indenture is hereby amended by (i) inserting the
words "each of" following the words "Subject to Article Eight," at the
beginning of such Section; (ii) inserting the words "and the Guarantor" after
the words "the Company" in the first line of such Section; (iii) deleting the
words "its existence," before the word "rights," in the second line thereof and
inserting in their place the words "their respective existence,"; (iv)
inserting the word "neither" before the words "the Company" in the third line
thereof; (v) replacing the words "shall not" with the words "nor the Guarantor
shall" in the third line thereof; and (vi) inserting the words "or the board of
directors of the Guarantor, as the case may be," after the words "Board of
Directors" in the fourth line thereof; and (vii) inserting the words "or the
Guarantor, as the case may be," after the word "Company" in the sixth line
thereof.
15. Section 1008 of the Indenture is hereby amended by (i) inserting the
words "and the Guarantor may omit in any particular instance to comply with any
covenant or condition set forth in Section 1004, in either case" after the word
"inclusive," in the second line thereof, and
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(ii) inserting the words "or the Guarantor" after the last reference to "the
Company" in such Section 1008.
16. The Indenture is hereby amended by the insertion of the following
Article Twelve-A after the existing Article Twelve:
ARTICLE TWELVE-A
SUBORDINATION OF GUARANTY
Section 1201-A. Agreement To Subordinate.
The Guarantor, for itself, its successors and assigns, covenants and
agrees, and each Holder likewise covenants and agrees by his acceptance
thereof, that the obligations of the Guarantor to make any payment on account
of the Guaranty shall be subordinate and junior, to the extent and in the
manner hereinafter set forth, in right of payment to the Guarantor's
obligations to the holders of Guarantor Senior Indebtedness.
Section 1202-A. Guarantor Not To Pay If Guarantor Senior Indebtedness Is In
Default.
No payment on account of the Guaranty shall be made by the Guarantor
unless full payment of amounts then due for principal (and premium, if any),
sinking funds, and interest on Guarantor Senior Indebtedness has been made or
duly provided for in money or money's worth in accordance with its terms. No
payment on account of the Guaranty shall be made by the Guarantor if, at the
time of such payment or immediately after giving effect thereto, there shall
have occurred an event of default with respect to any Guarantor Senior
Indebtedness or any instrument under which the same is outstanding, permitting
the holders thereof (or a trustee on behalf of the holders thereof) to
accelerate the maturity thereof, written notice of which shall have been given
to the Trustee by the Guarantor or to the Guarantor and the Trustee by any
holder or holders of any kind or category of Guarantor Senior Indebtedness
entitled to accelerate the maturity thereof by reasons of such event of default
(or a trustee on their behalf), and such event of default shall not have been
cured or waived.
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SECTION 1203-A. Payment Over of Proceeds upon Dissolution, Default, Etc. of
the Guarantor.
The Guarantor agrees that upon (i) the occurrence of any event of
default referred to in Section 1202-A above which shall not have been cured or
waived or (ii) any payment or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding up or total or partial liquidation or reorganization
of the Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership, conservatorship or other proceedings, all principal (and premium,
if any), sinking fund payments and interest due or to become due upon all
Guarantor Senior Indebtedness shall first be paid in full, or payment thereof
provided for in money or money's worth in accordance with its terms, before any
payment is made on account of the Guaranty and upon any such dissolution or
winding up or liquidation or reorganization, any payment or distribution of
assets of the Guarantor of any kind or character, whether in cash, property or
securities (other than securities of the Guarantor or any other Person provided
for by a plan or reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Section with respect to the
Guaranty, to the payment in full of all Guarantor Senior Indebtedness, provided
the rights of the holders of the Guarantor Senior Indebtedness are not altered
by such reorganization of readjustment), to which the Holders of the Securities
would, except for the provisions hereof, be entitled, shall be paid by the
Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, or by the Holders or by the
Trustee under this instrument if received by them or it, directly to the holders
of Guarantor Senior Indebtedness (pro rata to each such holder on the basis of
the respective amounts of Guarantor Senior Indebtedness held by such holder) or
their representatives, to the extent necessary to pay all Guarantor Senior
Indebtedness in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of such Guarantor
Senior Indebtedness, before any payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities or to the Trustee under this
Guaranty.
In the event that any payment or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities, not
permitted by the foregoing, shall be received by the Trustee or any Holder
before all Guarantor Senior Indebtedness is paid in full, or
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provision is made for such payment, in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of such Guarantor Senior Indebtedness (pro
rata to each such holder on the basis of the respective amounts of Guarantor
Senior Indebtedness held by such holder) or their representative or
representatives, as their respective interests may appear, or to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
distribution, for application to the payment of all Guarantor Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Guarantor
Senior Indebtedness in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness.
The consolidation of the Guarantor with, or the merger of the
Guarantor into, another corporation or the liquidation or dissolution of the
Guarantor following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section if the
corporation formed by such consolidation or into which the Guarantor is merged
or the Person which acquires by conveyance or transfer such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1204-A. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
Subject to the prior payment in full of all Guarantor Senior
Indebtedness, the Holders shall be subrogated (equally and ratably with the
holders of all indebtedness of the Guarantor which by its express terms is not
superior in right of payment to the Guaranty and ranks pari passu with the
Guaranty and is entitled to like rights of subrogation) to the rights of the
holders of such Guarantor Senior Indebtedness to receive payments or
distributions of assets or securities of the Guarantor applicable to the
Guarantor Senior Indebtedness. For purposes of such subrogation, no payments or
distributions in respect of the Guarantor Senior Indebtedness of assets or
securities which otherwise would have been payable or distributable to Holders
shall, as between the Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness, and the Holders, be deemed to be a payment by
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the Guarantor to or on account of the Guarantor Senior Indebtedness, and no
payments or distributions to the Trustee or the Holders of the Securities of
assets or securities which are applied to the satisfaction of Guarantor Senior
Indebtedness, as the case may be, by virtue of the subordination herein provided
for shall, as between the Guarantor, its creditors other than the holders of
Guarantor Senior Indebtedness and the Holders of the Securities, be deemed to be
a payment by the Guarantor to or on account of the Guaranty.
SECTION 1205-A. Reliance on Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Guarantor referred
to in this Article, the Trustee, subject to the provisions of Section 601, and
the Holders shall be entitled to rely upon an order or decree made by any court
of competent jurisdiction in which such dissolution or winding up or liquidation
or reorganization or arrangement proceedings are pending or upon a certificate
of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of
creditors or other person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Guarantor Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1206-A. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Securities, shall prevent (a) the Guarantor, at any time except
during the pendency of any dissolution, winding up, liquidation or
reorganization or other similar proceedings referred to in Section 1203-A or
under the conditions described in Section 1202-A, from making payments at any
time under the Guaranty or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to the payment of or on account
of the Guaranty, and the retention by the Holders of any moneys so received, if,
at the time of such deposit, the Trustee or such Paying Agent, as the case may
be, did not have the written notice provided for in Section 1207-A of any event
prohibiting the making of such deposit or if, at the time of such deposit
(whether or not in trust) by the Guarantor with the Trustee or any Paying Agent
(other than the Guarantor), such payment would not have been prohibited by the
provisions of this Article.
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SECTION 1207-A. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume that no
event of default or prohibition specified in Section 1202-A has happened, until
the Trustee shall have received an Officers' Certificate of the Guarantor to
that effect or notice in writing signed by or on behalf of the holders, or their
representatives, of at least $1,000,000 in principal amount of Guarantor Senior
Indebtedness who shall have been certified by the Guarantor or otherwise
established to the reasonable satisfaction of the Trustee to be such holders or
representatives or from any trustee under any indenture pursuant to which such
Guarantor Senior Indebtedness shall be outstanding provided, however, that, if
prior to the third Business Day preceding the date upon which by the terms
hereof any money becomes payable (including, without limitation, the payment of
either the principal of or interest on any Security), or in the event of the
execution of an instrument pursuant to Section 401 acknowledging satisfaction
and discharge of this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee or any Paying Agent shall not
have received with respect to such money the Officers' Certificate or notice
provided for in this Section 1207-A, then, anything herein contained to the
contrary notwithstanding, the Trustee or such Paying Agent shall have full power
and authority to receive such money and apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary which
may be received by it on or after such date. The Guarantor shall give prompt
written notice to the Trustee and to the Paying Agent of any facts which would
prohibit the payment of money to or by the Trustee or any Paying Agent.
SECTION 1208-A. Provisions Are Solely To Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of the Guarantor Senior Indebtedness, on the other. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as between the Guarantor, its creditors other than holders
of Guarantor Senior Indebtedness, and the Holders, the obligation of the
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Guarantor, which is absolute and unconditional, to pay to the Holders the
Guarantor's obligations under the Guaranty when the same shall become due and
payable in accordance with its terms, or is intended to or shall affect the
relative rights against the Guarantor of the Holders and creditors of the
Guarantor other than the holders of the Guarantor Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of the Company otherwise payable or delivered to the Trustee or such
Holder upon the exercise of any such remedy.
SECTION 1209-A. No Waiver of Subordination Provisions.
No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
SECTION 1210-A. Trustee To Effectuate Subordination.
Each Holder by his acceptance of a Security of Securities authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to or on behalf of Holders
of the Securities or the Guarantor moneys or assets to which any holder of
Guarantor Senior Indebtedness shall be entitled by virtue of this Article
Twelve-A.
SECTION 1211-A. Rights of Trustee as Holder of Guarantor Senior
Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Guarantor Senior Indebtedness which may at any time
be held by it, to
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the same extent as any other holder of Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder; provided that nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1212-A. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1207-A and 1211-A shall not apply to the Guarantor or any
Affiliate of the Guarantor if it or such Affiliate acts as Paying Agent.
17. Ratification and Confirmation. As amended and modified by this
Supplemental Indenture, the Indenture is in all respects ratified and confirmed
and the Indenture and this Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
18. Counterparts. This Supplemental Indenture may be executed in any
number of counterparts and all said counterparts executed and delivered each as
an original shall constitute but one and the same instrument.
19. Trustee's Duties, Responsibilities and Liabilities. The Trustee
assumes no duties, responsibilities or liabilities by reason of this
Supplemental Indenture other than as set forth in the Indenture, and this
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions of their acceptance of the trust under the
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Indenture, as fully as if said terms and conditions were herein set forth at
length.
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In Witness Whereof, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, as of the day and year first above written.
FIRST UNION CORPORATION
OF VIRGINIA
By: /s/ Xxxx X. Xxxxxxxx
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Senior Vice President
ATTEST:
/S/ Xxxxx X. Xxxxxx
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Assistant Secretary
FIRST UNION CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Senior Vice President
ATTEST:
/S/ Xxxxx X. Xxxxxx
-------------------
Assistant Secretary
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxx
-------------------
Vice President
ATTEST:
/s/ Xxxxxxxxx X. Xxxxxxx
------------------------
