Exhibit 4(e)(ii)
FIRST UNION CORPORATION,
WACHOVIA CORPORATION
AND
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 31, 2001
to
INDENTURE
Dated as of March 1, 1993
SUBORDINATED DEBT SECURITIES
FIRST SUPPLEMENTAL INDENTURE, dated as of August 31, 2001,
among FIRST UNION CORPORATION, a North Carolina corporation ("Successor"),
WACHOVIA CORPORATION, a North Carolina corporation ("Wachovia"), and CHASE
MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, as successor trustee to Mellon
Bank, N.A., as successor trustee to CoreStates Bank, N.A., as trustee (the
"Trustee").
WHEREAS, Wachovia and the Trustee have heretofore executed and
delivered a certain Indenture, dated as of March 1, 1993 (the "Indenture";
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Indenture), providing for the issuance from time to time of Securities;
WHEREAS, Wachovia and Successor have entered into an Agreement
and Plan of Merger, dated as of April 15, 2001 (as amended and restated and
otherwise amended or modified, the "Merger Agreement"), which contemplates the
execution and filing of articles of merger (the "Articles of Merger") providing
for the merger of Wachovia with and into Successor (the "Merger"), with
Successor continuing its corporate existence under the laws of the State of
North Carolina;
WHEREAS, Section 801 of the Indenture provides, among other
things, that the Company shall not merge into any other corporation unless,
among other things, 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 of the Indenture provides, among other
things, 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 one or more indentures supplemental to the Indenture, in form
satisfactory to the Trustee, 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, Successor and Wachovia desire and have requested that
the Trustee join in the execution of this First Supplemental Indenture for the
purpose of evidencing such succession and assumption;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by resolutions of the boards of directors of
Wachovia and Successor; 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, as follows:
ARTICLE ONE
REPRESENTATIONS OF WACHOVIA AND SUCCESSOR
Each of Wachovia and Successor represents and warrants to the
Trustee as follows:
SECTION 1.1. It is a corporation duly organized, validly
existing and in good standing under the laws of the State of North Carolina.
SECTION 1.2. 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.
SECTION 1.3. The Merger will become effective in accordance
with the terms of the Merger Agreement and North Carolina law when the Articles
of Merger are filed in the office of the Secretary of State of the State of
North Carolina, or at such later date or time as the Successor and Wachovia
agree and specify in the Articles of Merger (the time the Merger becomes
effective being the "Effective Time").
SECTION 1.4. Immediately after giving effect to 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.
ARTICLE TWO
ASSUMPTION AND AGREEMENTS
SECTION 2.1. Successor hereby assumes 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 2.2. Securities of any series authenticated and
delivered after the execution of this First Supplemental Indenture may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in this First Supplemental Indenture.
SECTION 2.3. Successor shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the effect as if Successor had been named as the Company therein, and
hereafter Wachovia shall be relieved of all obligations and covenants under the
Indenture and the Securities.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1. The recitals contained herein shall be taken as
the statements of the Company and Successor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation and
shall have no responsibility as to the validity and sufficiency of this First
Supplemental Indenture.
SECTION 3.2. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be part of and govern this First Supplemental Indenture, the latter
provision shall control. If any provision of this First Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
First Supplemental Indenture as so modified or to be excluded, as the case may
be.
SECTION 3.3. Nothing in this First Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any benefit or any legal or equitable right, remedy
or claim under this First Supplemental Indenture.
SECTION 3.4. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
SECTION 3.5. This First Supplemental Indenture 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 3.6. This First Supplemental Indenture shall become
effective as of the Effective Time.
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.
WACHOVIA CORPORATION
By /s/ Xxxxxxx X. XxXxxxxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx, Esq.
Title: Senior Executive Vice President
and General Counsel
(Corporate Seal)
Attest:
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Secretary
FIRST UNION CORPORATION
By /s/ Xxxx X. Xxxxxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
(Corporate Seal)
Attest:
/s/ Xxxxxxx Xxxxxxxx
--------------------------
Assistant Secretary
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
(Corporate Seal)
Attest:
/s/ ILLEGIBLE
-------------------------
STATE OF NORTH CAROLINA )
): ss.:
COUNTY OF FORSYTH )
On this 31st day of August, 2001, before me, the undersigned
officer, personally appeared Xxxxxxx X. XxXxxxxxxx, who acknowledged himself or
herself to be the Senior Executive Vice President and General Counsel of
WACHOVIA CORPORATION, a North Carolina corporation, and that he or she 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 or
herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ M. Xxxxx Xxxxxx
------------------------------------
Notary Public
[SEAL]
STATE OF NORTH CAROLINA )
): ss.:
COUNTY OF MECKLENBURG )
On this 31st day of August, 2001, before me, the undersigned
officer, personally appeared Xxxx X. Xxxxxxxx, Xx., who acknowledged himself or
herself to be the Senior Vice President of FIRST UNION CORPORATION, a North
Carolina corporation, and that he or she 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 or herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Notary Public
[SEAL]
COMMONWEALTH OF PENNSYLVANIA )
): ss.:
COUNTY OF PHILADELPHIA )
On this 30th day of August, 2001, before me, the undersigned
officer, personally appeared Xxxxxxxxx Xxxxxxxx, who acknowledged himself or
herself to be the _______________ of CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, and that he or she as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the association by himself or herself as such officer.
I hereby certify that I am not a director or officer of the
above-named trust company.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Notary Public
[SEAL]
